Teresa Agapito Morales and her minor child, both nationals of Mexico, filed applications for asylum, withholding of removal, and protection under the Convention Against Torture. The Immigration Judge ordered them to submit biometrics, warning that failure to do so by the final hearing date would result in the abandonment of their applications. Over a period of sixteen months, the Immigration Judge provided notice of this requirement at three separate hearings. When Morales appeared for her final hearing on June 5, 2024, she had not submitted the biometrics and had not articulated what steps she had taken to begin the process. The Immigration Judge deemed the applications abandoned, and the Board of Immigration Appeals affirmed that dismissal. The petitioners then sought review in the Ninth Circuit, arguing that the Immigration Judge abused his discretion and violated their due process rights, particularly citing inadequate legal assistance from the Northwest Immigrant Rights Project.
The panel reviewed the Immigration Judge's abandonment finding for abuse of discretion. Under 8 C.F.R. § 1003.47(c), failure to file necessary documentation or comply with biometrics requirements within the time allowed constitutes abandonment unless the applicant demonstrates good cause. The court found no abuse of discretion because the Immigration Judge had informed Morales of the requirement at three separate hearings over sixteen months, and Morales confirmed she understood the obligation on each occasion. The record showed that Morales failed to articulate any steps taken to comply. The petitioners argued that inadequate legal assistance from the Northwest Immigrant Rights Project constituted good cause, but the court noted that the petitioners never raised this concern with the Immigration Judge below. Furthermore, the record did not show that the organization failed to act diligently, as their obligations were limited to assisting with the initial application forms. Regarding due process, the court held that the petitioners failed to establish agency error, which is required to prove a due process violation. The panel also addressed the claim that the Immigration Judge failed to develop the record. The court found no evidence that the Immigration Judge knew the legal organization had filed a biometrics request, and the Judge repeatedly asked Morales what steps she had taken to get her fingerprints taken. Finally, the court affirmed the denial of a continuance to secure legal representation. The Immigration Judge had already granted four continuances over seventeen months, and the petitioners had only just contacted an attorney who was unavailable. The BIA also properly rejected the ineffective assistance of counsel claim because the petitioners failed to comply with the procedural requirements of Matter of Lozada, which includes providing an affidavit detailing the agreement with counsel and notifying the attorney of the claim.
The petition for review is denied, leaving the asylum and Convention Against Torture applications dismissed as abandoned. The stay of removal remains in place until the mandate issues. The decision reinforces that petitioners bear the burden of following up on biometrics requirements and that failure to raise legal assistance issues with the Immigration Judge precludes raising them on appeal. It also clarifies that limited appearance by counsel does not create ongoing obligations to ensure biometric compliance.