NACARY HOGARTH XAVIER, AKA Nacary Xavier v. WILLIAM P. BARR, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NACARY HOGARTH XAVIER, AKA
Nacary Xavier,
Petitioner,
v.
WILLIAM P. BARR, Attorney General,
Respondent.
No. 18-71146
Agency No. A097-417-293
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 18, 2019**
Before: CANBY, TASHIMA, and CHRISTEN, Circuit Judges.
Nacary Hogarth Xavier, a native and citizen of St. Lucia, petitions for
review of the Board of Immigration Appeals’ order dismissing his appeal from an
immigration judge’s (“IJ”) decision denying his application for adjustment of
status. Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
NOV 25 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 18-71146
questions of law and review for abuse of discretion the denial of a continuance.
Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009). We dismiss in part and
deny in part the petition for review.
Xavier’s contentions that the agency violated due process by misconstruing
or not considering evidence and argument, not following agency precedent,
applying the incorrect discretionary standard, and in not providing notice to him
that a heightened standard would be applied are not supported. Accordingly, he
has not raised a colorable claim of legal or constitutional error that would invoke
our jurisdiction to review the agency’s discretionary denial of adjustment of status.
See Hosseini v. Gonzales, 471 F.3d 953, 956-57 (9th Cir. 2006).
The IJ did not abuse his discretion or violate due process in not continuing
proceedings to review Xavier’s submissions, where the record shows the IJ
considered Xavier’s filings in his decision. See Ahmed v. Holder, 569 F.3d 1009,
1012 (9th Cir. 2009) (listing factors to consider when reviewing the denial of a
continuance, including the nature of the evidence excluded); Padilla-Martinez v.
Holder, 770 F.3d 825, 830 (9th Cir. 2014) (“To prevail on a due-process claim, a
petitioner must demonstrate both a violation of rights and prejudice.”).
PETITION FOR REVIEW DISMISSED in part; DENIED in part.

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