NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 1 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT FANXING ZENG, No. 21-70911 Petitioner, Agency No. A206-217-102 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted May 18, 2022 Pasadena, California Before: LEE and BRESS, Circuit Judges, and FITZWATER,** District Judge. Dissent by Judge BRESS. Fanxing Zeng, a native and citizen of China seeks review of an order of the Board of Immigration Appeals (BIA) in which the agency affirmed an immigration judge’s (IJ) dismissal of his applications for relief as abandoned and denied remand * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Sidney A. Fitzwater, United States District Judge for the Northern District of Texas, sitting by designation. based on ineffective assistance of counsel (IAC). We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition. 1. The BIA did not err in affirming the IJ decision deeming Zeng’s application abandoned. “An IJ’s decision to deem an asylum application abandoned is reviewed for abuse of discretion.” Gonzalez-Veliz v. Garland, 996 F.3d 942, 948 (9th Cir. 2021). The governing regulation makes clear that failure to provide biometrics “within the time allowed by the [IJ]’s order, constitutes abandonment of the application and the [IJ] may enter an appropriate order dismissing the application unless the applicant demonstrates that such failure was the result of good cause.” 8 C.F.R. § 1003.47(c)); see also 8 C.F.R. § 1208.10 (“Failure to comply with processing requirements for biometrics . . . within the time allowed will result in dismissal of the application, unless the applicant demonstrates that such failure was the result of good cause.”). Here, at the calendar hearing, the IJ served the required biometrics notice on Zeng and explained its significance and in a later written order stated that Zeng must provide all applications, supporting documents, including proof of fee payment and biometrics registration by a certain date, or risk having the case considered abandoned. Despite these warnings, Zeng failed to observe the deadline, did not request an extension, or file a motion explaining good cause for the failure. The IJ thus did not abuse his discretion by deciding to deem Zeng’s application abandoned. 2 See Gonzalez-Veliz, 996 F.3d at 949. 2. The agency did not err in denying the motion to remand based on ineffective assistance of counsel because Zeng failed to comply with any of the procedural requirements for making an IAC claim. “We review the Board’s denial of motions to remand for abuse of discretion.” Taggar v. Holder, 736 F.3d 886, 889 (9th Cir. 2013). The BIA abuses its discretion only when it has acted “arbitrarily, irrationally, or contrary to law.” Singh v. INS, 213 F.3d 1050, 1052 (9th Cir. 2000). Claims of ineffective assistance of counsel present mixed questions of law and fact. …
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