Opinion
No. 07-73196.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed December 14, 2009.
Franklin W. Nelson, Esquire, Pasadena, CA, for Petitioner.
CAC-District Counsel, Esquire, Office of the District Counsel Department of Homeland Security, Los Angeles, CA, Ronald E. Lefevre, Office of the District Counsel Department Of Homeland Security, San Francisco, CA, William C. Minick, Esquire, U.S. Department of Justice, Oil, U.S. Department of Justice, Civil Division/Office of Immigration Litigation, Washington, DC, for Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A073-995-593.
Before: ALARCÓN, TROTT, and TASHIMA, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Wilfredo Kabiling Tribute, a native and citizen of the Philippines, petitions for review of the Board of Immigration Appeals'("BIA") order dismissing his appeal from an immigration judge's ("IJ") decision denying his motion for a continuance and his asylum application. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion for a continuance, Nakamoto v. Ashcroft, 363 F.3d 874, 883 n. 6 (9th Cir. 2004), and review de novo questions of law, Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000). We dismiss in part and deny in part the petition for review.
We lack jurisdiction to consider Tribute's unexhausted contention that the IJ erred by failing to advise Tribute that the fingerprints he previously provided were out of date. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004) (generally requiring exhaustion of claims before the BIA).
Tribute's contention regarding 8 C.F.R. § 1208.10 is unavailing. Moreover, the IJ did not abuse his discretion in denying Tribute's motion for a continuance because the IJ warned him that failure to provide fingerprints would result in the denial of his application. See Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1246-47 (9th Cir. 2008); cf. Cui v. Mukasey, 538 F.3d 1289, 1293-95 (9th Cir. 2008). It follows that Tribute's due process claim fails. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error to establish a due process violation).
PETITION FOR REVIEW DISMISSED in part; DENIED in part.