Angel Garcia v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANGEL GARCIA,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 19-70631
Agency No. A072-522-163
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 11, 2021**
Pasadena, California
Before: OWENS, R. NELSON, and BADE, Circuit Judges.
Angel Garcia, a native and citizen of Mexico, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
Immigration Judge’s (“IJ”) decision pretermitting his applications for withholding
of removal and protection under the Convention Against Torture for failure to
* 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
MAY 14 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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comply with the biometrics requirement. We grant the petition for review.
Garcia did not waive any challenge to the BIA’s decision by failing to raise
a relevant argument in his opening brief. See Mamouzian v. Ashcroft, 390 F.3d
1129, 1136 (9th Cir. 2004) (“We will not ignore the ultimate objective of
[petitioner’s] appeal . . . by parsing [his] brief’s language in a hyper technical
manner.”).
The IJ abused its discretion when it pretermitted Garcia’s applications for
failure to comply with the biometrics requirement.
[T]o ensure that an asylum applicant receives proper notice of the
biometrics requirements, the Immigration Judge should do all of the
following on the record: (1) ensure that the DHS has advised the
applicant of the need to provide biometrics and other biographical
information and has furnished the appropriate instructions; (2) inform
the applicant of the deadline for complying with the requirements of
which he has been notified; and (3) inform the applicant of the
consequences of noncompliance, including the possibility that the
application will be deemed abandoned and dismissed, unless the failure
to comply resulted from good cause.
Matter of D-M-C-P-, 26 I. & N. Dec. 644, 648-49 (BIA 2015) (emphasis added)
(interpreting 8 C.F.R. § 1003.47(c)-(d)). In Gonzalez-Veliz v. Garland, we held
that a petitioner had adequate notice of the biometrics requirement when she was
advised twice to complete them “before the next hearing.” No. 19-72090, 2021
WL 1743585, at *6 (9th Cir. May 4, 2021). Here, however, Garcia did not receive
adequate notice of the requirement because the IJ did not provide a deadline by
which to submit his biometrics. Because “[t]he BIA’s interpretations of its

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regulations are due ‘substantial deference,’” Karingithi v. Whitaker, 913 F.3d
1158, 1161 (9th Cir. 2019) (citation omitted), and because Garcia was never given
a deadline by which to complete the biometrics requirement, we hold the IJ abused
its discretion when it deemed his applications for relief abandoned.
Although “it is clearly an abuse of discretion for an IJ to deny a request from
an otherwise diligent applicant for a short continuance to submit fingerprints,” Cui
v. Mukasey, 538 F.3d 1289, 1295-96 (9th Cir. 2008), Garcia never requested a
continuance before the IJ. Thus, the IJ did not abuse its discretion in not sua
sponte granting a continuance to allow Garcia to have his biometrics completed.
PETITION FOR REVIEW GRANTED.

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