Andres Arizmendi-Medina v. MERRICK B. GARLAND, Attorney General

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANDRES ARIZMENDI-MEDINA,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 21-298
Agency No.
A215-674-741
OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 9, 2023*
Pasadena, California
Filed June 7, 2023
Before: Ronald Lee Gilman,** Danielle J. Forrest, and
Holly A. Thomas, Circuit Judges.
Opinion by Judge Gilman;
Dissent by Judge Forrest
* The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
** The Honorable Ronald Lee Gilman, United States Circuit Judge for
the Court of Appeals, 6th Circuit, sitting by designation.

-- 1 of 35 --

2 ARIZMENDI-MEDINA V. GARLAND
SUMMARY***
Immigration
The panel granted Andres Arizmendi-Medina’s petition
for review of the Board of Immigration Appeals’ dismissal
of his appeal of an immigration judge’s determination that
his asylum application had been abandoned because it was
not timely filed, and remanded for consideration of his
application for relief from removal.
After two continuances to secure legal representation,
and a subsequent change of venue, Arizmendi-Medina
appeared before an IJ who denied his request for an
additional continuance to hire an attorney, found Arizmendi-
Medina removable, provided him with an I-589 relief
application, and set the next hearing date for December 18,
2018. The IJ explained to Arizmendi-Medina that if he
returned to court on December 18 saying that he still needed
more time to find an attorney, and that he was not able to fill
out the asylum application, it was likely that the court would
conclude that he had abandoned the opportunity to apply for
asylum and related relief. The court provided Arizmendi-
Medina a “Notice of Hearing,” which marked the December
18 hearing as a “Master” hearing as opposed to an
“Individual” hearing.
Arizmendi-Medina appeared for his hearing on
December 18 with a recently-retained attorney who
requested a brief continuance to file Arizmendi-Medina’s
*** This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

-- 2 of 35 --

ARIZMENDI-MEDINA V. GARLAND 3
relief application. The IJ informed Arizmendi-Medina’s
attorney that the relief application was due that day. The
government argued that the application should be deemed
abandoned and the IJ agreed. Arizmendi-Medina’s attorney
requested the opportunity to make a window filing, which
would have allowed her to complete and submit the
application before the court closed for the day. The IJ
rejected the request, again stating that “the application was
due today.” Arizmendi-Medina’s attorney then requested
that the IJ allow her to submit the application while the IJ
was still on the bench that day. This request was also
rejected, with the IJ declaring that the application was due
that morning. The IJ deemed Arizmendi-Medina’s relief
application abandoned pursuant to 8 C.F.R. § 1003.31(c)
(now appearing at 8 C.F.R. § 1003.31(h)), and found that
Arizmendi-Medina failed to establish good cause for a
continuance given the previous continuances the prior IJ
granted for him to locate an attorney.
The panel held that the IJ’s rejection of the opportunity
to file a relief application on December 18 deprived
Arizendi-Medina of a full and fair opportunity to be
heard. Recognizing that IJs can set and extend time limits
for the filing of applications, and that under 8 C.F.R. §
1003.31(h) applications that are “not filed within the time set
by the [IJ] . . . shall be deemed waived,” the panel wrote that
IJs in setting and enforcing deadlines cannot proceed in a
manner that deprives a noncitizen of due process. The panel
concluded that Arizmendi-Medina’s immigration
proceedings were fundamentally unfair because (1) the
purported deadline to submit a relief application was
ambiguous; (2) Arizmendi-Medina’s counsel offered to
submit the application on the day of the apparent deadline
while the IJ was still on the bench, making any delay in the

-- 3 of 35 --

4 ARIZMENDI-MEDINA V. GARLAND
proceeding practically nonexistent; and (3) the IJ’s denial of
a continuance so that Arizmendi-Medina’s recently-retained
counsel could submit the application was an abuse of
discretion. The panel concluded that the IJ’s rejection of
Arizmendi-Medina’s application clearly affected the
outcome of the proceedings, and thus caused him prejudice,
because the merits of his application were never considered
by the agency at all. The panel remanded for the agency to
consider Arizmendi-Medina’s application in the first
instance.
Dissenting, Judge Forrest wrote that IJ satisfied due
process by giving Arizmendi-Medina sufficient notice of the
application deadline and the consequences for failing to meet
it, and the IJ did not abuse his discretion in deeming
Arizmendi-Medina’s application abandoned when
Arizmendi-Medina failed to meet the filing
deadline. Further, Judge Forrest would not have considered
the alternative unexhausted claim raised by the court sua
sponte related to the IJ’s refusal to grant a further extension.
COUNSEL
Shannon Englert, Carlsbad, California, for Petitioner.
Edward C. Durant and Spencer Shucard, Trial Attorneys;
Jessica E. Burns, Senior Litigation Counsel; Brian Boynton,
Acting Assistant Attorney General, Civil Division; Office of
Immigration Litigation, United States Department of Justice;
Washington, D.C.; for Respondent.

-- 4 of 35 --

ARIZMENDI-MEDINA V. GARLAND 5
OPINION
GILMAN, Circuit Judge:
Andres Arizmendi-Medina, a native and citizen of
Mexico, was ordered by an immigration judge (IJ) to be
removed from the United States after the IJ ruled that
Arizmendi-Medina’s application for relief from removal
was untimely. The Board of Immigration Appeals (BIA)
agreed with the IJ and dismissed Arizmendi-Medina’s
appeal. Arizmendi-Medina timely petitioned for review,
arguing that the rejection of his relief application violated his
due process rights. For the reasons set for below, we
GRANT Arizmendi-Medina’s petition and REMAND this
case to the BIA for further proceedings.
I. BACKGROUND
A. Initiation of immigration proceedings
Arizmendi-Medina entered the United States in March
2006 near Tecate, California without inspection. The
Department of Homeland Security (DHS) took Arizmendi-
Medina into custody and served him with a Notice to Appear
(NTA) on July 19, 2018. He was charged with being
removable as an “alien present in the United States without
being admitted or paroled,” pursuant to 8 U.S.C.
§ 1182(a)(6)(A)(i).
Arizmendi-Medina had his first hearing before IJ
Catherine Halliday-Roberts in Otay Mesa, California, on
July 31, 2018. Arizmendi-Medina’s most comfortable
language is Spanish, so an interpreter was used for all of his
immigration proceedings. The IJ briefly explained the
nature of the removal proceedings and then reset the case for
August 15, 2018 in order for Arizmendi-Medina to hire an

-- 5 of 35 --

6 ARIZMENDI-MEDINA V. GARLAND
attorney. At that August 15 hearing, Arizmendi-Medina
explained to the IJ that he had spoken with an attorney whom
he planned to hire, but that he “hadn’t gotten the money” yet,
and that the attorney told him “it was too soon.” Arizmendi-
Medina therefore asked for a continuance to secure the
attorney. DHS did not oppose the request, and the IJ granted
a continuance until August 29, 2018.
The day before the next hearing, on August 28, 2018,
Arizmendi-Medina posted a $25,000 bond and was released
from DHS custody. He filed a pro se Motion to Change
Venue that same day, seeking a transfer to the Immigration
Court in downtown San Diego, California, which is closer to
his home. Arizmendi-Medina did not appear at his hearing
in Otay Mesa the following day, but the IJ acknowledged the
Motion to Change Venue, which DHS did not oppose, and
granted the motion. The next hearing was scheduled before
a new IJ in the San Diego Immigration Court on October 24,
2018.
B. Hearing on October 24, 2018
The removal proceedings resumed on October 24, 2018
before IJ Jeffrey L. Romig. A Spanish interpreter was used.
Arizmendi-Medina had not yet been able to hire an attorney,
stating that his $25,000 bond was high for him and that he
was still looking for funds to hire an attorney. The IJ rejected
Arizmendi-Medina’s request for another continuance
because Arizmendi-Medina “had a reasonable opportunity
to obtain an attorney.” The proceeding therefore continued
without the assistance of counsel for Arizmendi-Medina.
After a brief inquiry, the IJ found that Arizmendi-Medina
was unlawfully present in the United States. The IJ therefore
sustained the charge of removability against him.

-- 6 of 35 --

ARIZMENDI-MEDINA V. GARLAND 7
During the questioning, Arizmendi-Medina revealed that
he was afraid to return to Mexico because he had been
mugged and beaten in the streets when last there. The IJ then
told Arizmendi-Medina that he might be eligible for asylum
and that he had “the right to complete the application and file
it with the Court [and to] explain in detail all the reasons that
[he is] afraid or unwilling to return to Mexico.” Arizmendi-
Medina was then handed an I-589 relief application for the
first time, with the IJ explaining that it needed to be
completed in English.
The IJ then set the next hearing for December 18, 2018,
specifically stating:
The date for your next hearing will be
December 8 --18, December 18 at 8:30. The
Court Clerk will give you the hearing notice.
Again, not too late to get an attorney involved
in your case, but every time you come back
to court without an attorney after today, you
will be expected to represent yourself. If you
return to court that day and you say, I still
need more time to find an attorney, I wasn’t
able to fill out the asylum application, it is
likely that the Court would conclude you
have abandoned the opportunity to apply for
Asylum and you would only be considered as
an applicant for Voluntary Departure.
The IJ next asked whether Arizmendi-Medina
understood what was explained to him that morning, to
which Arizmendi-Medina said “yes.” When Arizmendi-
Medina was then asked if he had any further questions, he
said “no.” Arizmendi-Medina was also presented with a

-- 7 of 35 --

8 ARIZMENDI-MEDINA V. GARLAND
“Notice of Hearing,” which specifically marked the
December 18, 2018 hearing as a “Master” hearing as
opposed to an “Individual” hearing.
C. Hearing on December 18, 2018
Arizmendi-Medina was finally able to hire an attorney,
Shannon Englert, who represented him at the December 18,
2018 hearing. Englert informed the IJ that she had been just
retained by Arizmendi-Medina, and that “it took
[Arizmendi-Medina] quite a significant time to retain [her]
office for the preparation of a case” because Arizmendi-
Medina’s “bond was rather high.” Because her office was
only recently retained, Englert requested a “brief
continuance” to file the relief application.
The IJ informed Englert that the relief application was
due that day. DHS then argued that the application should
be deemed abandoned, and the IJ agreed, noting that
Arizmendi-Medina had “a reasonable opportunity to prepare
an application for Asylum.” Englert, apparently unsure that
the application was actually due that day, stated: “Your
honor, if today is the deadline, we would ask that you permit
a window filing,” which would have allowed Englert to
complete and submit the application before the court closed
for the day. The IJ rejected the request, again stating that
“the application was due today.” Englert next requested that
the IJ allow her to submit the application while the IJ was
still on the bench that day. This request was also rejected,
with the IJ declaring that “it was due this morning.”
The final issue addressed at the hearing was the
possibility of post-conclusion voluntary departure.
Arizmendi-Medina was questioned briefly by Englert and
then by the IJ, after which the IJ was ready to render an oral
decision. The IJ ultimately ruled that Arizmendi-Medina’s

-- 8 of 35 --

ARIZMENDI-MEDINA V. GARLAND 9
relief application was abandoned pursuant to 8 C.F.R.
§ 1003.31(c) (which now appears in 8 C.F.R. § 1003.31(h))
because he “did not have the asylum application ready to be
filed today.” Further, the IJ found that there was not good
cause for a continuance, “considering especially the number
of continuances previously granted to [Arizmendi-Medina]
for the purpose of obtaining Counsel.” The IJ also denied
Arizmendi-Medina’s request for post-conclusion voluntary
departure. Arizmendi-Medina timely appealed the IJ’s order
to the BIA.
D. The BIA affirms the decision of the IJ
On appeal to the BIA, Arizmendi-Medina argued that he
was denied the due process of law because the IJ rejected his
relief application, even after Arizmendi-Medina’s counsel
offered to file it “while the judge was still on the bench and
hearing cases” that day. The BIA issued a ruling on June 9,
2021 that agreed with the IJ and dismissed Arizmendi-
Medina’s appeal. In reaching its conclusion, the BIA noted
that Arizmendi-Medina was given a “full and fair
opportunity to submit his I-589” and that the IJ “permissibly
adhered to the filing deadline.” The BIA also noted the IJ’s
broad discretion in setting filing deadlines and controlling
immigration proceedings. Arizmendi-Medina timely
petitioned for our review of the BIA’s final order of removal.
II. ANALYSIS
A. Standard of review
Our review is “limited to the BIA’s decision, except to
the extent that the IJ’s opinion is expressly adopted.”
Khudaverdyan v. Holder, 778 F.3d 1101, 1105 (9th Cir.
2015) (quoting Popova v. INS, 273 F.3d 1251, 1257 (9th Cir.
2001)). A due process challenge in an immigration

-- 9 of 35 --

10 ARIZMENDI-MEDINA V. GARLAND
proceeding is reviewed de novo. Zetino v. Holder, 622 F.3d
1007, 1011–12 (9th Cir. 2010) (citing Padilla v. Ashcroft,
334 F.3d 921, 923 (9th Cir. 2003)).
B. Due process requirements in immigration
proceedings
Arizmendi-Medina was denied due process because the
rejection of the opportunity to file a relief application on
December 18, 2018 deprived him of a full and fair
opportunity to be heard. True enough, IJs can “set and
extend time limits for the filing of applications,” and
applications that are “not filed within the time set by the [IJ]
. . . shall be deemed waived.” 8 C.F.R. § 1003.31(h). IJs
may not, however, when setting and enforcing deadlines,
proceed in a manner that deprives a noncitizen of due
process. Ibarra-Flores v. Gonzales, 439 F.3d 614, 620 (9th
Cir. 2006) (“The Fifth Amendment guarantees due process
in deportation proceedings.” (quoting Colmenar v. INS, 210
F.3d 967, 971 (9th Cir. 2000))).
This means that a noncitizen facing deportation must
receive “a full and fair hearing of his claims and a reasonable
opportunity to present evidence on his behalf.” Id. at 620
(quoting Colmenar, 210 F.3d at 971). The requirements of
due process have not been met if “(1) the proceeding was so
fundamentally unfair that the [noncitizen] was prevented
from reasonably presenting his case, and (2) the [noncitizen]
demonstrates prejudice, which means that the outcome of the
proceeding may have been affected by the alleged
violation.” Zetino, 622 F.3d at 1013 (quoting Ibarra-Flores,
439 F.3d at 620–21).

-- 10 of 35 --

ARIZMENDI-MEDINA V. GARLAND 11
C. The IJ’s ultimate ruling was fundamentally unfair
Arizmendi-Medina’s immigration proceedings were
fundamentally unfair because (1) the purported deadline to
submit a relief application was ambiguous; (2) Arizmendi-
Medina’s counsel offered to submit the application on the
day of the apparent deadline while the IJ was still on the
bench, making any delay in the proceeding practically
nonexistent; and (3) the IJ’s denial of a continuance so that
Arizmendi-Medina’s recently-retained counsel could submit
the application was an abuse of discretion. Each of these
factors is addressed below.
a. The relief application deadline was ambiguous
IJs should clearly communicate deadlines. The IJ failed
to do so here, contrary to the BIA’s and the government’s
characterization. The BIA stated that the IJ “clearly
instructed the respondent to ‘file [the I-589] with the Court’
at the subsequent hearing on December 18, 2018.” But that
is not an accurate characterization of what the IJ said. When
the IJ’s words are placed in their proper context, they reveal
that the IJ was simply informing Arizmendi-Medina of his
right to file an application for relief from removal: “You . . .
nonetheless have the right to complete the application and
file [the I-589] with the Court, explain[ing] in detail all the
reasons you’re afraid or unwilling to return to Mexico.” The
more relevant statement from the IJ about the subsequent
hearing on December 18th is as follows:
The date for your next hearing will be
December 8 --18, December 18 at 8:30. The
Court Clerk will give you the hearing notice.
Again, not too late to get an attorney involved
in your case, but every time you come back

-- 11 of 35 --

12 ARIZMENDI-MEDINA V. GARLAND
to court without an attorney after today, you
will be expected to represent yourself. If you
return to court that day and you say, I still
need more time to find an attorney, I wasn’t
able to fill out the asylum application, it is
likely that the Court would conclude you
have abandoned the opportunity to apply for
Asylum and you would only be considered as
an applicant for Voluntary Departure.
The above language shows that the IJ was not entirely
clear that the firm and final deadline for submitting a relief
application would be December 18, 2018. His statements
can just as easily be read as a deadline for Arizmendi-
Medina to find an attorney. The bulk of the IJ’s colloquy at
the October 24, 2018 hearing was focused on the hiring of
an attorney, not on the submission of a relief application
(which Arizmendi-Medina had just received moments
earlier). Arizmendi-Medina might well have understood the
IJ as insisting only that Arizmendi-Medina would have to
proceed pro se if he did not secure an attorney by December
18, 2018.
The dissent disputes this reading, referencing statements
from the IJ granting a continuance to Arizmendi-Medina for
the purpose of hiring an attorney, and clarifying that if
Arizmendi-Medina did not find an attorney, he would have
to fill out the asylum application himself. But these
statements, rather than demonstrating that the IJ clearly
instructed Arizmendi-Medina to file his asylum application
on December 18, only further suggest that the IJ’s focus was
not on the application submission deadline, but rather on the
deadline for Arizmendi-Medina to retain an attorney.

-- 12 of 35 --

ARIZMENDI-MEDINA V. GARLAND 13
The one thing that Arizmendi-Medina was clearly
prohibited from doing was appearing at the next hearing and
using the lack of an attorney as an excuse for not completing
the relief application. What was not clearly conveyed is that
no additional time would be given for a newly-retained
attorney to assist Arizmendi-Medina in completing the
application.
Even if the IJ expected the relief application to be
completed on December 18, 2018, the IJ did not clearly state
the dire consequences of failing to abide by such a deadline.
The IJ simply said that Arizmendi-Medina’s application was
“likely” to be deemed abandoned, not that such a
consequence would automatically or certainly occur.
Arizmendi-Medina could have reasonably understood the
deadline to have some flexibility, especially given the IJ’s
focus on Arizmendi-Medina securing counsel by December
18, 2018.
Concerns with the IJ’s unclear language become more
apparent when contrasted with the language used by the IJ
in Matter of R-C-R-, 28 I & N Dec. 74, 76 n.4 (BIA 2020),
in which the BIA found that the IJ’s rejection of a late-filed
application did not violate due process. There, the IJ said:
I’m going to reset your case to another date
to give you time to prepare that application
and submit it to the Court. My next date is
going to be January 14th, 2020 at 10:00 a.m.
I’m going to require that you submit the
asylum application to the Court on or before
December 6th, 2019. If the Court does not
and has not received your application on or
before that date, I am going to find that you
have abandoned your request for relief. So,

-- 13 of 35 --

14 ARIZMENDI-MEDINA V. GARLAND
it’s very, very important that you submit the
asylum application to the Court as well as a
copy to the Government no later than
December 6th, 2019.
Id.
There is no doubt that the IJ in Matter of R-C-R-
unambiguously communicated the deadline (twice, in fact)
for filing a relief application, unlike the IJ for Arizmendi-
Medina, who primarily focused on the fact that Arizmendi-
Medina did not have an attorney. Further, the IJ in Matter
of R-C-R- firmly announced the consequences of missing the
deadline, leaving no doubt that the IJ would find the
application for relief abandoned should the respondent not
submit it by the specified date. That cannot be said of the IJ
in this case, who simply said that a finding of abandonment
would be a “likely” consequence of a failure to file the
application.
The IJ’s explicit language and clear warning in Matter of
R-C-R- was key to the BIA’s determination that the
petitioner’s due process rights were not violated. Id. at 77–
78 (“The [IJ] gave the respondent explicit instructions
regarding the filing date and clearly warned him that his
application for relief would be deemed waived if it was not
timely filed.”). At bottom, the IJ’s language in this case
lacked the same critical clarity.
b. Arizmendi-Medina attempted to submit his relief
application to the IJ while the IJ was still on the
bench
Arizmendi-Medina’s relief application was rejected even
though his counsel offered to submit it to the IJ before the IJ
left the bench that day. As noted above, the IJ claimed to

-- 14 of 35 --

ARIZMENDI-MEDINA V. GARLAND 15
have set the deadline as December 18, 2018. Arizmendi-
Medina offered to submit his application on that very date,
so his application would have been timely even under the
IJ’s characterization of the deadline. When Arizmendi-
Medina’s counsel offered to get the application to the IJ that
day, however, the IJ claimed—for the first time—that it was
not just due that day, but that morning.
In Jerezano v. INS, 169 F.3d 613 (9th Cir. 1999), we
made clear the due process implications of ordering a
noncitizen deported because of lateness to court. Jerezano
arrived at court only “15 or 20 minutes” after his scheduled
hearing time, but the IJ had already conducted the hearing in
absentia and ordered Jerezano deported. Id. at 614. The IJ,
while still on the bench, refused to reopen the case. Id. at
615. On appeal, we held that arriving “15 to 20 minutes late,
but . . . while the IJ was still on the bench[,] . . . do[es] not
constitute a failure to appear,” and that the failure to reopen
or continue proceedings after Jerezano arrived
“unreasonably deprived Jerezano of his due process right to
a full and fair hearing.” Id.
Although Jerezano dealt with a slightly different issue (a
failure to appear at the time the case was called) than the
issue before us (a failure to submit a relief application at the
time the case was called), our reasoning in Jerezano applies
here. As we explained in Jerezano, “[i]t is accepted practice
for courts to give tardy litigants a second chance by putting
them at the end of the calendar” and that “so long as [the IJ]
is there on other business and the delay is short[,] . . . it is an
abuse of discretion to treat a slightly late appearance as a
nonappearance.” Id. The same is true here. Arizmendi-
Medina explicitly offered to submit his application to the IJ
while the IJ was still on the bench that day, making any delay
practically nonexistent. As a consequence of the IJ’s refusal

-- 15 of 35 --

16 ARIZMENDI-MEDINA V. GARLAND
to accept that application, Arizmendi-Medina, like Jerezano,
was never given “[his] day in court to present [his] claim[]
for asylum.” See id. (alteration in original) (quoting Romani
v. INS, 146 F.3d 737, 739 (9th Cir. 1998)).
Also undermining the reasonableness of the IJ’s decision
is the fact that the December 18, 2018 hearing was scheduled
as a Master Calendar hearing, which is not meant to be an
adjudication of the merits. See Immigration Court Practice
Manual § 4.15, Exec. Off. for Immigr. Rev. (last visited
May 15, 2023), https://www.justice.gov/eoir/reference-
materials/ic/chapter-4/15 (Master Calendar Hearing). The
individual merits hearing in Arizmendi-Medina’s case
would have had to be scheduled for a later date. After all,
neither the IJ nor DHS would have had the opportunity to
review Arizmendi-Medina’s application if it had been filed
that day. Thus, no delay at all would have occurred in the
adjudication of the merits if Arizmendi-Medina had been
allowed to submit his relief application to the IJ at any time
on December 18, 2018, let alone while the IJ was still on the
bench.
Given the harsh consequences of deportation, the IJ’s
actions in this case constituted a denial of a full and fair
hearing for Arizmendi-Medina. “We have repeatedly
warned that ‘a myopic insistence upon expeditiousness’ will
not justify the denial of a meritorious request for delay,
especially where the [denial] impairs the petitioner’s
statutory rights.” Ahmed v. Holder, 569 F.3d 1009, 1013 (9th
Cir. 2009) (quoting Cui v. Mukasey, 538 F.3d 1289, 1292
(9th Cir. 2009) (alterations in original, internal citations
omitted)). Although we are cognizant of the significant
demands upon the immigration courts, and mindful that it is
not our role “to substitute our judgment as a court of
appeals” for that of the IJ, Dissent at 30–31 n.1, “[a]n

-- 16 of 35 --

ARIZMENDI-MEDINA V. GARLAND 17
immigrant’s right to have [his or] her case heard should not
be sacrificed because of the [immigration judge’s] heavy
caseload.” Id. at 1013–14 (quoting Cui, 538 F.3d at 1292
(alterations in original, internal citations omitted)).
c. The IJ abused his discretion by denying Arizmendi-
Medina’s request for a continuance
Although Arizmendi-Medina has not directly challenged
the IJ’s denial of his request as an abuse of discretion
(instead asserting only a due process claim), we have in the
past identified abuses of discretion so severe as to deny the
petitioner a full and fair hearing. See, e.g., Jerezano, 169
F.3d at 615 (noting that the IJ’s abuse of discretion deprived
Jerezano of his due process rights); Cruz Rendon v. Holder,
603 F.3d 1104, 1109 (9th Cir. 2010) (finding that the IJ’s
abuse of discretion in denying a continuance contributed to
the court’s holding that the petitioner was denied a full and
fair hearing). An IJ’s abuse of discretion therefore sheds
light on whether a noncitizen was deprived of his due
process rights. The dissent’s contention that we have sua
sponte addressed this question is therefore unfounded—our
analysis is part of the due process challenge that Arizmendi-
Medina explicitly made, and we engage in it only as further
evidence of the IJ’s denial of a full and fair hearing.
Nor do administrative-exhaustion requirements bar us
from considering the IJ’s abuse of discretion in order to fully
evaluate Arizmendi-Medina’s due process claim. See 8
U.S.C. § 1252(d)(1). A noncitizen need not raise a “precise
argument” before the BIA in order to exhaust it, so long as
the noncitizen gives the BIA “an adequate opportunity to
pass on the issue.” Diaz-Jimenez v. Sessions, 902 F.3d 955,
960 (9th Cir. 2018). Here, Arizmendi-Medina’s brief before
the BIA challenged the IJ’s refusal to accept his asylum

-- 17 of 35 --

18 ARIZMENDI-MEDINA V. GARLAND
application while still on the bench, quoting language from
Jerezano, 169 F.3d at 615, that described a similar practice
as an “abuse of discretion” and a due process violation.
Arizmendi-Medina therefore exhausted the issue of whether
the IJ’s abuse of discretion was so severe as to violate due
process.
To determine if an IJ abused his discretion in denying a
continuance, this court looks at “(1) the nature of the
evidence excluded as a result of the denial of the
continuance, (2) the reasonableness of the immigrant’s
conduct, (3) the inconvenience to the court, and (4) the
number of continuances previously granted.” Ahmed, 569
F.3d at 1012 (citing Karapetyan v. Mukasey, 543 F.3d 1118,
1129 (9th Cir. 2008), superseded by statute on other grounds
as stated in Owino v. Holder, 575 F.3d 956, 958 (9th Cir.
2009)).
Regarding the first factor, the IJ rejected Arizmendi-
Medina’s entire relief application, thus excluding all
evidence as a result of the denial of the continuance. This
factor favors Arizmendi-Medina.
Second, as described above, Arizmendi-Medina’s
conduct was reasonable given the ambiguous deadline and
the lack of clear warning as to the consequences of not
submitting a relief application on the morning of December
18, 2018. There is no evidence that Arizmendi-Medina’s
request for a continuance was a surreptitious attempt to delay
the proceedings; it was simply an effort give his recently-
retained attorney the time necessary to complete the
application. See id. at 1013 (noting that the petitioner’s
conduct was not an attempt to delay the proceedings). This
factor also weighs in favor of Arizmendi-Medina.

-- 18 of 35 --

ARIZMENDI-MEDINA V. GARLAND 19
Third, the IJ was hardly inconvenienced at all.
Arizmendi-Medina’s counsel offered to submit the
application while the IJ was still on the bench. Although this
might have required the IJ to recall Arizmendi-Medina’s
case at the end of the IJ’s docket, this inconvenience was
truly minimal. Cf. Jerezano, 169 F.3d at 615 (“While an IJ
need not linger in the courtroom awaiting tardy litigants, so
long as he is there on other business and the delay is short[,]
. . . it is an abuse of discretion to treat a slightly late
appearance as a nonappearance.”). Further, as discussed
above, the December 18, 2018 hearing was a Master
Calendar hearing, not a merits hearing. This means that the
proceedings were ultimately not delayed at all.
And fourth, we consider the total number of
continuances previously granted to Arizmendi-Medina. He
received two very short continuances (only two weeks each)
to find an attorney at the beginning of his immigration
proceedings on July 31, 2018 and August 15, 2018. See Cruz
Rendon, 603 F.3d at 1106–07, 1110 (finding that two one-
month continuances were both “exceedingly short”). The
proceedings were then reset at the hearing on August 29,
2018 because Arizmendi-Medina requested, and the IJ
granted, a change of venue. The next hearing was scheduled
for October 24, 2018 before a new IJ. Although this
certainly gave Arizmendi-Medina more time to find an
attorney, this delay was primarily due to the change of venue
and getting the case calendared in a new court.
Finally, after Arizmendi-Medina was required to
proceed pro se and was found removable at the hearing on
October 24, 2018, the IJ granted another continuance so that
Arizmendi-Medina could continue to look for an attorney
and work on his relief application (which was presented to
him for the first time at the October 24, 2018 hearing).

-- 19 of 35 --

20 ARIZMENDI-MEDINA V. GARLAND
Arizmendi-Medina thus received only one continuance after
he was found removable and presented with a relief
application, and he received zero continuances after he
finally secured an attorney. From start to finish, the
proceedings against Arizmendi-Medina were delayed for
less than five months, with nearly two months of that delay
due to the change of venue.
Ultimately, all of the Ahmed factors weigh in favor of
finding that the IJ abused his discretion in not granting a
continuance so that Arizmendi-Medina’s recently-retained
counsel could complete and submit the relief application on
December 18, 2018. The abuse is especially apparent given
the offer of Arizmendi-Medina’s counsel to submit the
application later that same day. Such an abuse by the IJ
counsels in favor of finding that Arizmendi-Medina was
denied fundamental fairness. See id. at 1110 (finding that
the IJ abused her discretion in part because the merits
hearing was “less than one month after Cruz Rendon first
appeared with counsel,” which contributed to the
noncitizen’s difficulty in marshalling evidence in such a
short time frame (emphasis in original)). This “prevented
[Arizmendi-Medina] from reasonably presenting his case.”
See Zetino, 622 F.3d at 1013 (quoting Ibarra-Flores, 439
F.3d at 620-21).
D. Arizmendi-Medina was prejudiced
Prejudice is established where “the IJ’s conduct
‘potentially [affected] the outcome of the proceedings.’”
Colmenar v. INS, 210 F.3d 967, 972 (9th Cir. 2000) (quoting
Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th Cir. 1999),
superseded by statute on other grounds as stated in Xiu Xia
Lin v. Mukasey, 534 F.3d 162, 165 (2d Cir. 2008) (per
curiam)). The IJ’s rejection of Arizmendi-Medina’s

-- 20 of 35 --

ARIZMENDI-MEDINA V. GARLAND 21
application clearly “[affected] the outcome of the
proceedings” because the merits of his application were
never considered by the agency at all. See id.
A similar issue arises in due process claims based on the
ineffective assistance of counsel where the petitioner’s
counsel fails to file the relief application on time, resulting
in the agency deeming the application abandoned. For
example, in Correa-Rivera v. Holder, 706 F.3d 1128, 1133
(9th Cir. 2013), we held that the petitioner was prejudiced
because “[his] counsel’s failure to file [his] applications
. . . unquestionably affected the outcome of the proceedings”
by preventing Correa-Rivera from presenting his case and
depriving him of the opportunity to apply for cancellation of
removal. Id. (quoting Rodriguez-Lariz v. INS, 282 F.3d
1218, 1226 (9th Cir. 2002)). This court remanded to the BIA
with instructions that the BIA should allow Correa-Rivera to
submit his application. Id.; see also Colmenar, 210 F.3d at
972 (noting that a showing of prejudice does not require an
explanation of “exactly what evidence [the petitioner] would
have presented to support [his] assertions”); Zolotukhin
v. Gonzales, 417 F.3d 1073, 1077 (9th Cir. 2005) (“We may
infer prejudice even absent any allegations as to what the
petitioner or his witnesses might have said if the IJ had not
cut off or refused to permit their testimony.”).
These same concerns are present here. Arizmendi-
Medina was prejudiced by the IJ’s complete rejection of his
application because the rejection deprived him of the
opportunity to apply for relief from removal, which
potentially altered the outcome of the proceedings. If that
were not deemed prejudicial, we would have to consider the
merits of Arizmendi-Medina’s application without the
benefit of any factual findings or analysis by the IJ. A

-- 21 of 35 --

22 ARIZMENDI-MEDINA V. GARLAND
remand for the IJ to consider the application in the first
instance is therefore appropriate.
III. CONCLUSION
For all of the reasons set forth above, we GRANT
Arizmendi-Medina’s petition and REMAND this case to the
BIA for further proceedings.
FORREST, Circuit Judge, dissenting:
After Petitioner Andres Arizmendi-Medina received
multiple continuances, the Immigration Judge (IJ) gave him
a deadline to file an application for relief from removal and
warned him that if he did not file a timely application, his
asylum application would be deemed abandoned. The court
concludes that the IJ violated due process and abused his
discretion by doing exactly what he said he would do. The
court also sua sponte raises the question of whether the IJ
abused his discretion by denying a further continuance and
concludes that he did. I respectfully dissent. The IJ satisfied
due process by giving Arizmendi-Medina sufficient notice
of the application deadline and the consequences for failing
to meet it, and the IJ did not abuse his discretion in deeming
Arizmendi-Medina’s application abandoned when
Arizmendi-Medina failed to meet the filing deadline.
Further, I would not consider the alternative unexhausted
claim raised by the court sua sponte related to the IJ’s refusal
to grant a further extension.

-- 22 of 35 --

ARIZMENDI-MEDINA V. GARLAND 23
I. Background
Twelve years after Arizmendi-Medina entered the
United States without inspection, he was detained and served
with a Notice to Appear (NTA) for removal proceedings.
Arizmendi-Medina appeared at an initial hearing before an
IJ about a week later—without counsel. He requested a
continuance because he did not have the money to hire the
attorney that he found. The IJ explained the purpose of the
proceedings and that Arizmendi-Medina had the right (1) to
an attorney; (2) to “examine and object to any evidence
offered against [him];” (3) to present his own evidence; and
(4) to apply for relief from removal. Arizmendi-Medina
affirmed that he understood his rights, and the IJ continued
Arizmendi-Medina’s case for approximately two weeks to
allow for him to retain an attorney.
At his next hearing, Arizmendi-Medina requested a
second extension because even though he had the money to
hire his attorney—the same attorney handling his bond
hearing—he had only contacted the attorney the prior day
and the attorney was unable to attend his hearing because
“[i]t was too soon.” The IJ granted Arizmendi-Medina
another two-week continuance and warned him that “this
[wa]s going to be [his] last continuance for an attorney.” The
day before his second reset hearing, Arizmendi-Medina was
released from custody after posting a $25,000 bond, and he
filed a pro se motion to change venue to an immigration
court closer to his residence. Arizmendi-Medina did not
appear at his hearing scheduled the next day, but the
Government declined to proceed in absentia and the IJ
granted Arizmendi-Medina’s motion for change of venue.
Two months later, Arizmendi-Medina had his first
hearing before a different IJ, and he again appeared without

-- 23 of 35 --

24 ARIZMENDI-MEDINA V. GARLAND
counsel. He explained that he could not hire an attorney
because of his high bond payment. The new IJ declined to
grant Arizmendi-Medina another continuance, reviewed the
factual allegations in the NTA with Arizmendi-Medina, and
sustained the charge of removability. The IJ asked
Arizmendi-Medina if he feared returning to Mexico, and,
after some questioning, determined that Arizmendi-Medina
might be eligible for asylum. The IJ informed Arizmendi-
Medina about the one-year deadline for applying for asylum
as well as some other limitations on this relief and had the
clerk give Arizmendi-Medina an application form. The IJ
then instructed Arizmendi-Medina as follows:
You want to be thinking in terms of three
copies. If you have an attorney, the attorney
will be able to complete the application for
you. If you don't have the -- an attorney, you
will have to fill it out, uh, making sure that
the application is turned in in English, that
you have, uh, the original to present to the
Court, one copy for the attorney
representative of the Department of
Homeland Security, one copy for your own
records. The date for your next hearing will
be . . . December 18 at 8:30. The Court Clerk
will give you the hearing notice. Again, not
too late to get an attorney involved in your
case, but every time you come back to court
without an attorney after today, you will be
expected to represent yourself. If you return
to court that day and you say, I still need more
time to find an attorney, I wasn’t able to fill
out the asylum application, it is likely that the
Court would conclude you have abandoned

-- 24 of 35 --

ARIZMENDI-MEDINA V. GARLAND 25
the opportunity to apply for Asylum and you
would only be considered as an applicant for
Voluntary Departure.
Arizmendi-Medina stated that he understood the IJ’s
instructions and had no questions. He never requested any
extensions of the filing deadline before December 18.
On December 18, Arizmendi-Medina appeared with
counsel, who requested a brief continuance to prepare and
file Arizmendi-Medina’s asylum application. The IJ denied
a continuance, explaining that the application was due that
morning, that Arizmendi-Medina was informed that he
needed to get his application filed with or without counsel’s
assistance, and that there was not good cause for granting a
further continuance. Arizmendi-Medina’s counsel then
requested that the IJ permit a window filing or that he trail
Arizmendi-Medina’s case to the end of the docket so that an
application could be prepared and filed while the IJ was still
on the bench. The IJ denied both requests and deemed
Arizmendi-Medina’s asylum application abandoned. The IJ
also advised counsel that Arizmendi-Medina could present a
completed application to the BIA and challenge the IJ’s
decision to deem the application abandoned on appeal.
Arizmendi-Medina appealed to the BIA, but he did not
submit a completed asylum application. Instead, in his notice
of appeal he contended that the IJ erred by deeming his
application abandoned and “denied hi[m] due process”
where he “requested to trail to go and print out the I-589.” In
his counseled brief to the BIA, Arizmendi-Medina further
argued that the IJ denied him due process by not allowing
him to file his asylum application while the IJ was still on
the bench and by departing from “accepted court practices in
order to deny [him] the chance to file his asylum

-- 25 of 35 --

26 ARIZMENDI-MEDINA V. GARLAND
application.” Arizmendi-Medina did not argue that the IJ
abused his discretion in denying a continuance in either his
notice of appeal or brief to the BIA.
The BIA rejected Arizmendi-Medina’s due-process
claim because the IJ “clearly instructed” him to file his
application at his December 18, 8:30 a.m. hearing,
Arizmendi-Medina confirmed that he understood the IJ’s
directions, and the IJ has broad discretion to conduct
proceedings and set deadlines.
II. Discussion
A. Deemed Abandonment
Arizmendi-Medina argues that the IJ’s decision to deem
his asylum application abandoned and not allow him to
prepare and file his asylum application while the IJ was still
on the bench on December 18 was a denial of due process.
Immigration proceedings are “not subject to the full range of
constitutional protections,” but they “must conform to the
Fifth Amendment’s requirement of due process.” Salgado-
Diaz v. Ashcroft, 395 F.3d 1158, 1162 (9th Cir. 2005). We
review due process claims de novo, Ibarra-Flores v.
Gonzales, 439 F.3d 614, 620 (9th Cir. 2006), but we review
an IJ’s decision to deem an application for relief abandoned
for abuse of discretion. Gonzalez-Veliz v. Garland, 996 F.3d
942, 948 (9th Cir. 2021).
The touchstone of due process is notice and an
opportunity to be heard. See Fuentes v. Shevin, 407 U.S. 67,
80 (1972); see also Mathews v. Eldridge, 424 U.S. 319, 333
(1976) (“The fundamental requirement of due process is the
opportunity to be heard ‘at a meaningful time and in a
meaningful manner.’” (citation omitted)). The BIA errs in
denying a due process claim only where “(1) the proceeding

-- 26 of 35 --

ARIZMENDI-MEDINA V. GARLAND 27
was so fundamentally unfair that the alien was prevented
from reasonably presenting his case, . . . and (2) the alien
demonstrates prejudice.” Ibarra-Flores, 439 F.3d at 620–21
(cleaned up).
IJs “set and extend time limits for the filing of
applications and related documents.” 8 C.F.R. § 1003.31(h).
The regulation further instructs that “[i]f an application or
document is not filed within the time set by the [IJ], the
opportunity to file that application or document shall be
deemed waived.” Id. Deeming a petitioner’s application
abandoned does not violate due process if it is authorized by
the governing regulations. See Gonzalez-Veliz, 996 F.3d at
948–49 (rejecting due process challenge because regulatory
requirements were met and citing Juarez v. Holder, 599 F.3d
560, 566 (7th Cir. 2010) (“The petitioners also assert a rather
vague due-process challenge to the . . . IJ's decision to deem
their applications for relief abandoned. But immigration
proceedings satisfy due process so long as they conform to
the applicable statutory and regulatory standards, as these
did.”)); see also Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.
2000) (holding that a petitioner must show error and
substantial prejudice to prevail on a due process challenge to
deportation proceedings).
Here, Arizmendi-Medina was given ample notice of his
rights throughout his proceedings. He also received multiple
continuances and was warned that if he did not file his
asylum application by his December 18 hearing, it would be
deemed abandoned. Despite not filing an application by the
IJ’s deadline, Arizmendi-Medina argues that he was denied
due process because he was not allowed to file his
application after his case was heard on December 18, and the
court agrees. The court’s explanation for excusing
Arizmendi-Medina’s failure to comply with the immigration

-- 27 of 35 --

28 ARIZMENDI-MEDINA V. GARLAND
court’s deadline is that the IJ’s instructions were ambiguous,
and Arizmendi-Medina could have thought that he was
required only to find an attorney by his December 18
hearing. Maj. Op. at 11–14. The record belies this conclusion.
When the first IJ granted Arizmendi-Medina a second
continuance, the IJ stated it would be the “last continuance
for [getting] an attorney.” Then when Arizmendi-Medina
appeared before the second IJ—without an attorney—that IJ
denied a further continuance and gave Arizmendi-Medina
the asylum application form, advising: “If you have an
attorney, the attorney will be able to complete the application
for you. If you don't have the -- an attorney, you will have to
fill it out.” The second IJ then set a hearing for December 18
at 8:30 a.m. and explained that if Arizmendi-Medina
appeared at that time and said he “still need[ed] more time
to find an attorney, [he] wasn’t able to fill out the asylum
application,” his application would likely be deemed
abandoned.
The IJ’s words and the context in which they were said
make clear that Arizmendi-Medina was required to file his
application before his hearing began on December 18. There
is no indication that Arizmendi-Medina was confused about
that. Instead, the record shows that he appeared on
December 18 unprepared to proceed because “it took him
quite a significant time to retain [counsel] for the preparation
of [the] case.” This is essentially the same reason he had
given in obtaining his prior continuances, and the IJ
expressly warned him that he needed to have his application
completed—with or without the help of an attorney—or it
would be deemed abandoned. On this record, I cannot
conclude that the IJ violated due process or that the agency
abused its discretion in deeming Arizmendi-Medina’s
application abandoned. See Gonzalez-Veliz, 996 F.3d at

-- 28 of 35 --

ARIZMENDI-MEDINA V. GARLAND 29
948–49 (concluding an IJ did not abuse his discretion in
deeming application abandoned where petitioner was on
notice of this potential consequence); see also Taggar v.
Holder, 736 F.3d 886, 889 (9th Cir. 2013) (“Neither the IJ
nor the Board abused their discretion in holding that
[petitioner] had waived her application for relief and
protection. [Petitioner] did not file her application for relief
by [the deadline] for her applications set by the IJ.”).
The court relies on Jerezano v. INS, 169 F.3d 613 (9th
Cir. 1999), in concluding that the IJ violated Arizmendi-
Medina’s due process right. In that case, Jerezano conceded
removability and stated that he would apply for asylum. Id.
at 614. But, because he arrived “15 or 20 minutes” after the
time set for his asylum hearing, the IJ conducted his hearing
in absentia, ordered Jerezano deported, and ultimately
instructed him to file a motion to reopen after his late arrival.
Id. at 614–15. Jerezano filed two pro se motions to reopen,
which were rejected by the IJ and the BIA. Id. at 615. We
reversed because it was an abuse of discretion to “treat a
slightly late appearance as a nonappearance.” Id. We
explained that “[t]he IJ should have either reopened or
continued the proceeding after Jerezano arrived” because
failing to do so denied him the “right to a full and fair
hearing” in violation of due process. Id.
Unlike in Jerezano, here Arizmendi-Medina was not
deprived of his right to participate in his hearing. There is no
indication Jerezano’s case, unlike Arizmendi-Medina’s, had
already been continued several times. See id. at 614–15. And
while Jerezano’s error was merely minor tardiness—for
which he offered a compelling excuse—Arizmendi-Medina
was present but unprepared to go forward because he failed
to file an application for relief. Further, Jerezano sought to
preserve his rights to participate in his hearing by filing two

-- 29 of 35 --

30 ARIZMENDI-MEDINA V. GARLAND
motions to reopen, id., but Arizmendi-Medina ignored the
IJ’s direction to submit a completed asylum application on
appeal to the BIA or move to reopen. Even at this point, there
is still no indication that Arizmendi-Medina has completed
an application for relief.
This case is also distinguishable from Ahmed v. Holder,
569 F.3d 1009 (9th Cir. 2009). There, Ahmed sought to
continue his removal proceedings while he appealed the
denial of his I-140 petition. Id. at 1011. Even though his
request was unopposed, the IJ denied a continuance because
he was “not keeping this on [his] calendar.” Id. at 1011. We
held the IJ “effectively pretermitted Ahmed’s I-140 appeal”
and that the relevant factors for evaluating a denial of
continuance supported granting the continuance. Id. at
1012–14. Specifically, we stated that the IJ’s “myopic
insistence upon expeditiousness” did not justify his decision.
Id. at 1013–14.
As discussed below, Arizmendi-Medina did not argue to
the BIA or to this court that the IJ erred by denying a
continuance, nor did he reference the relevant factors in
assessing a denial of a continuance. Moreover, Arizmendi-
Medina received multiple continuances to secure counsel,
was granted a change of venue to a location closer to his
residence, and was notified about his right to apply for
asylum and the filing requirements. The IJ’s refusal to
excuse Arizmendi-Medina’s untimeliness does not suggest
that the IJ was so myopically focused on expediency to
render his decision arbitrary, irrational, or contrary to law.
See Cui v. Garland, 13 F.4th 991, 996 (9th Cir. 2021).1 Nor
1 The court characterizes the IJ’s decision as unreasonable under the
circumstances, Maj. Op. at 16, but that is not the abuse of discretion

-- 30 of 35 --

ARIZMENDI-MEDINA V. GARLAND 31
was the IJ’s decision “so fundamentally unfair that
[Arizmendi-Medina] was prevented from reasonably
presenting his case.” Ibarra-Flores, 439 F.3d at 620 (citation
omitted). Undoubtedly, the IJ could have chosen to give
Arizmendi-Medina more time to file his application,
including by trailing his case to the end of the hearing docket
on December 18. But that does not mean his refusal to do so
was a constitutional violation. Immigration courts have
notoriously high caseloads and significant backlogs. See E.
Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 754 (9th
Cir. 2018) (discussing the “staggering increase in asylum
applications,” with “nearly 800,000 removal cases” in the
immigration courts’ backlog). And as the request to trail to
the end of the docket itself indicates, IJs also conduct
hearings on multiple cases in quick succession, which poses
unique time-management challenges—particularly where
immigration hearings typically require foreign-language
translation. See United States v. Calles-Pineda, 627 F.2d
976, 977 (9th Cir. 1980) (describing mass deportation
hearings at issue in that case involving 25–29 respondents);
United States v. Zarate-Martinez, 133 F.3d 1194, 1197 (9th
Cir. 1998) (same, regarding 22 potential deportees). Where
an IJ has given a petitioner a reasonable opportunity to apply
for relief and informed the petitioner of the deadline for
standard we must apply. See Cui, 13 F.4th at 996. Even if another judge
reasonably would have made a different decision, that does not make the
IJ’s decision “arbitrary, irrational, or contrary to law.” Id.; see also
United States v. Rivera, 527 F.3d 891, 903–04 (9th Cir. 2008)
(explaining that a district court does not abuse its discretion even where
this court may have reached a different conclusion). To substitute our
judgment as a court of appeals far removed from the actual
circumstances of the facts on the ground—absent an actual showing of
abuse of discretion—flies in the face of our limited role.

-- 31 of 35 --

32 ARIZMENDI-MEDINA V. GARLAND
applying for relief and the consequences for not meeting the
deadline, it is not for us to second guess the IJ’s management
of his docket. See Gonzalez-Veliz, 996 F.3d at 948–49; cf.
INS v. Abudu, 485 U.S. 94, 107–08 (1988) (discussing the
importance of agency discretion in managing immigration
cases and bringing deportation proceedings to a prompt
close).
B. Denial of a Continuance
Separately, the court concludes that the IJ abused his
discretion in denying Arizmendi-Medina a further
continuance on December 18. Maj. Op. at 17–20. This was
error because Arizmendi-Medina did not challenge the IJ’s
refusal to grant a further continuance either to the BIA or this
court. His only challenge was to the IJ’s decision to deem his
asylum application abandoned.
Under 8 U.S.C. § 1252(d)(1), a petitioner must exhaust
his administrative remedies. To do so, a petitioner must put
the BIA “sufficiently on notice so that it ‘had an opportunity
to pass on th[e] issue.’” Bare v. Barr, 975 F.3d 952, 960 (9th
Cir. 2020) (citation omitted). A petitioner fails to exhaust a
procedural due process claim where he argues on appeal that
such right was violated in ways not articulated to the BIA.
See Tall v. Mukasey, 517 F.3d 1115, 1120 (9th Cir. 2008).
Moreover, a petitioner can forfeit an exhausted claim by not
raising it “specifically and distinctly” in his opening brief in
this court. See Hernandez v. Garland, 47 F.4th 908, 916 (9th
Cir. 2022).
Arizmendi-Medina did not exhaust a challenge to the IJ’s
refusal to grant a further continuance. His notice of appeal to
the BIA argued that he “was denied a full and fair hearing”
because the IJ erred by “deeming all petitions for relief
abandoned.” He also argued, citing Jerezano, that he was

-- 32 of 35 --

ARIZMENDI-MEDINA V. GARLAND 33
denied his “due process right to apply for asylum.” Likewise,
his brief to the BIA argued only that he was denied due
process and that his case is analogous to Jerezano because
the IJ “appeared to have decided to forgo accepted court
practices.” The BIA’s failure to address the IJ’s refusal to
grant a further continuance demonstrates that it did not
understand Arizmendi-Medina to be making this separate
challenge. See Alvarado v. Holder, 759 F.3d 1121, 1128 (9th
Cir. 2014) (concluding argument was not exhausted and
finding it relevant that the BIA did not address it). The BIA
addressed the only argument that Arizmendi-Medina
presented and concluded that the IJ did not violate due
process in setting the application deadline and adhering to
that deadline. Where the Government raised Arizmendi-
Medina’s failure to exhaust, we should not decide a claim
based on an error that was not articulated to the BIA.2 See
Tall, 517 F.3d at 1120 (“Procedural errors that can be
remedied by the BIA are not exempted from the exhaustion
requirement.”).
The Supreme Court recently clarified that exhaustion in
this context is not jurisdictional and therefore can be waived
or forfeited. See Santos-Zacaria v. Garland, No. 21–1436,
slip op. at 5–11 (U.S. May 11, 2023) (construing exhaustion
as a claims-processing rule). But the Government did not
forfeit or waive exhaustion where it specifically argued that
2 As explained, I disagree with the court that the BIA was given the
“opportunity to pass on” whether the IJ erred by denying a further
continuance. Maj. Op. at 17. But even assuming, arguendo, that
Arizmendi-Medina did raise this argument to the BIA and the BIA failed
to address it, the court improperly addresses the issue “without giving
the BIA the opportunity to address the matter in the first instance in light
of its own expertise.” INS v. Orlando Ventura, 537 U.S. 12, 17 (2002)
(per curiam).

-- 33 of 35 --

34 ARIZMENDI-MEDINA V. GARLAND
Arizmendi-Medina failed to challenge the IJ’s denial of a
continuance to the agency. See Fort Bend County v. Davis,
139 S. Ct. 1843, 1849 (2019) (explaining that a court must
enforce a claims-processing rule “if a party ‘properly
raise[s]’ it” (alteration in original) (citing Eberhart v. United
States, 546 U.S. 12, 19 (2005) (per curiam)).
Finally, even if Arizmendi-Medina had exhausted a
challenge to the IJ’s refusal to grant a further continuance,
he forfeited this claim because he did not specifically or
distinctly raise it in his opening brief in this court, an issue
which the Government also raised. See Hernandez, 47 F.4th
at 916. The court tiptoes around Arizmendi-Medina’s
forfeiture by noting that on occasion we have relied on an
IJ’s abuse of discretion in deciding due process claims and
that the IJ’s denial of a further continuance is thus part of its
due process analysis. Maj. Op. at 17. But in such cases, the
petitioner at least raised the argument to the BIA and to us.
See Cruz Rendon v. Holder, 603 F.3d 1104, 1108–09 (9th
Cir. 2010) (explaining the petitioner asserted to the BIA
“that the IJ’s . . . denial of her request for an additional
continuance deprived her of the opportunity to present her
case” and argued on appeal “that the IJ denied her a full and
fair hearing by . . . denying her request for a continuance.”);
Jerezano, 169 F.3d at 615 (concluding that treating a slightly
late appearance as a nonappearance was an abuse of
discretion where petitioner argued “his tardiness d[id] not
rise to the level of a failure to appear”). By sua sponte raising
and considering Arizmendi-Medina’s unexhausted and
forfeited claim, the court ignores that our role is to decide
claims, not make them. United States v. Sineneng-Smith, 140
S. Ct. 1575, 1579 (2020) (explaining that we should “rely on
the parties to frame the issues for decision” (citation
omitted)).

-- 34 of 35 --

ARIZMENDI-MEDINA V. GARLAND 35
Because the IJ did not violate due process or abuse his
discretion by deeming Arizmendi-Medina’s application for
relief from removal abandoned, and because we should not
consider the unexhausted and, in any event, forfeited
assertion that the IJ abused his discretion in denying
Arizmendi-Medina a further continuance, I respectfully
dissent.

-- 35 of 35 --