Appellate Case: 21-9563 Document: 010110726372 Date Filed: 08/18/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 18, 2022 _________________________________ Christopher M. Wolpert Clerk of Court FORTINO CHAVARIN-PARRA,
Petitioner,
v. No. 21-9563 (Petition for Review) MERRICK B. GARLAND, United States Attorney General,
Respondent. _________________________________
ORDER AND JUDGMENT* _________________________________
Before TYMKOVICH, Chief Judge, MATHESON, and EID, Circuit Judges. _________________________________
Fortino Chavarin-Parra, a native and citizen of Mexico, petitions for review of
the Board of Immigration Appeals’ (“BIA”) dismissal of his appeal from the
immigration judge’s (“IJ”) denial of his claim for deferral of removal under the
Convention Against Torture (“CAT”). He also appeals the BIA’s decision affirming
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 21-9563 Document: 010110726372 Date Filed: 08/18/2022 Page: 2
the IJ’s denial of his motion to continue the merits hearing pending adjudication of
his application for a U-visa. Exercising jurisdiction under 8 U.S.C. § 1252(a)(4), we
deny the petition.
I. BACKGROUND
A. Prehearing Background
Mr. Chavarin-Parra arrived in the United States in 1999 when he was a child.
In 2017, he was charged regarding a marijuana-growing operation on federal land.
The Department of Homeland Security (“DHS”) learned that he was in the country
illegally and placed him in removal proceedings. In 2018, he pled guilty to
conspiracy to manufacture marijuana and depredation of public land and was
sentenced to 46 months in prison. See 21 U.S.C. §§ 841(a)(1), 846; 18 U.S.C.
§ 1361. While in prison, he applied for a U-visa with the United States Citizenship
and Immigration Services.1 Following his release, DHS detained Mr. Chavarin-Parra
and lodged additional charges of removability based on his criminal convictions.
1 A noncitizen who is a victim of certain crimes while in the United States may petition for U nonimmigrant status—more commonly known as a U-visa. 8 U.S.C. § 1101(a)(15)(U). A U-visa generally entitles an eligible noncitizen to lawfully remain in the United States and to seek work authorization. See id. § 1184(p)(6). To qualify, a noncitizen must demonstrate that (1) while in the United States, he suffered substantial physical or mental abuse from being a victim of certain criminal activity; (2) he has information about the criminal activity; and (3) a law enforcement official has certified that he has been, is being, or is likely to be helpful in the investigation or prosecution of the criminal activity. See id. § 1101(a)(15)(U)(i).
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B. Motion to Continue Removal Proceedings
Shortly before the merits hearing, Mr. Chavarin-Parra filed a motion to
continue the proceedings pending adjudication of his U-visa, arguing there was good
cause for a continuance based on his prima facie eligibility for a U-visa. The IJ
denied the motion.
I don’t think there’s good cause for a continuance[] because he’s detained . . . with . . . an aggravated felony, with a drug trafficking crime. And, . . . he’s unlikely to get out of custody because of . . . that. And so . . . if a U visa takes—you know, even if they’re expediting it, it still takes forever to do. . . . I’m not going to leave him detained here for three to five years, with his case pending.
Admin. R., Vol. 1 at 164.
C. Mr. Chavarin-Parra’s Testimony
At the merits hearing in early 2021, Mr. Chavarin-Parra testified he would
more likely than not be tortured upon his removal to Mexico because:
(1) as an outsider he was vulnerable to threats of violence and torture;
(2) he would be kidnapped and held for ransom because he had relatives living in the United States;
(3) his criminal history made him a target for torture by the police or recruitment by the cartels; and
(4) he faced reprisal from the cartels based on his kinship ties to current or former cartel members.
Mr. Chavarin-Parra said he could be identified in Mexico as an outsider
because he speaks Spanish with an English accent and has the mannerisms and
behavior of an American. He also feared kidnapping because his relatives in the
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United States could afford to pay a ransom. “I will be coming from . . . the U.S. . . .
People will find out that I have family here in the U.S. I can be kidnapped for
ransom, . . . and I can be tortured, forcibly disappeared, or killed.” Id. at 211. And
as someone with a criminal background, the cartels would perceive him as an easy
target for recruitment, and “when you deny recruitment, . . . you can be tortured,
forcibly disappeared or killed.” Id. at 210. Alternatively, “corrupted police officers”
would “torture [him]” to obtain information under the mistaken belief that he was “a
cartel member or . . . part of some [criminal] organization.” Id.
Regarding his kinship ties, Mr. Chavarin-Parra testified that his father told him
that several of his uncles were murdered in Mexico. His father said Victor and
Alvaro were murdered in 2011; Ernesto was kidnapped in 2011, and his body parts
were found in 2012; Ermos was kidnapped in 2012, and presumed dead; and Sexto
was murdered in 2018, following his removal from the United States to Mexico.
Ermos lived in Puerto Vallarta and worked at a hotel. The other four were alleged
cartel members who lived in in the State of Jalisco. Mr. Chavarin-Parra had never
met any of his uncles other than Sexto.
According to Mr. Chavarin-Parra, his uncles were murdered “because . . .
[they had] family members who were former, and are current, cartel members.” Id. at
204. He did not know which cartel his family was affiliated with, who killed his
uncles, or why they were killed. He also did not know how many family members
still belong to the cartel or “who they are.” Id. at 207. Relatedly, he denied that
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either he or anyone in his immediate family had ever been the member of a cartel or
any other criminal group.
Mr. Chavarin-Parra conceded that (1) he had never been harmed or threatened
by anyone in Mexico; (2) he had never had any interaction with the police or any
government officials; and (3) he had no evidence to show that he specifically would
be targeted by corrupt police officers or cartel members. See id. at 221-22.
D. Expert Testimony
Richard Kirkland, Ph.D., testified as Mr. Chavarin-Parra’s expert on security
issues and country conditions in Mexico. He provided general information about
drug cartels, including their goals and operations. Broadly speaking, he explained
that “the main thing that they want is . . . to be left alone . . . [so they can] transport
drugs to the United States.” Id. at 256. To keep their operations running smoothly,
“[t]he cartels will . . . often . . . intimidate local police and local politicians in order
to force them to . . . [turn] a blind eye [to their] activities.” Id. He cited low pay as
the primary reason why police are vulnerable to bribes. Also, the cartels have
informants within the government and police who keep them “up to date on . . .
what’s going on . . . so that they’re . . . aware of the situation in . . . their area of
operation. Id. at 257.
Dr. Kirkland also explained that “people who haven’t lived in Mexico for a
long period of time . . . or that have lived in the United States for a long period of
time” are known as “pocho[s].” Id. at 260. With little or no background in Mexican
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culture, these outsiders are often “shunned” and not “able to hold down a job.” Id.
He did not, however, say anything about outsiders having a heightened risk of torture
or violence.
As to extortion, Dr. Kirkland said that “returnees are targeted[] because [their
relatives in the United States] may have money [to] pay the extortion.” Id. at 263.
He added that the “easiest person [for the cartels] to recruit . . . is somebody with no
ties . . . to the local area. That’s why you see recruitment of returnees.” Id. at 260.
He acknowledged, however, that the cartels also recruit from the general population.
See id. at 262. And although returnees might be targets for extortion or recruitment,
Dr. Kirkland never mentioned torture or violence as a consequence of non-
compliance. See id. at 261, 263.
Addressing torture in general, Dr. Kirkland noted that the police have
sometimes “resorted to torture . . . in order to . . . extract information from . . .
detainees, in order to be able to find out the operations of . . . cartels, or . . . what is
. . . going on with these criminal organizations.” Id. 258. “And . . . [the police] . . .
have done . . . violence [at the] behest of the cartels, but those would be police that
would be . . . corrupt, and ones that aren’t operating under Mexican law.” Id.
Dr. Kirkland acknowledged that the Mexican government began to crack down
on the drug cartels more than twenty years ago, noting several specific steps taken to
eradicate police corruption and cartel violence. He also credited local governments
for “working as best as they can.” Id. at 255. According to Dr. Kirkland, rural areas
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near the border in the southern part of Mexico are relatively safe from the influence
and criminal activities of the cartels.
E. Agency Decisions
Immigration Judge
The IJ found that Mr. Chavarin-Parra and Dr. Kirkland were credible
witnesses. But after “consider[ing] all of the evidence in the record, and all evidence
relevant to the possibility that [he] would experience torture in the future,” id. at 104,
the IJ denied CAT deferral. The IJ said Mr. Chavarin-Parra failed to show it is more
likely than not that he would be subject to torture with the consent or acquiescence of
the Mexican government.2 As to the likelihood of torture, the IJ found “nothing
beyond [a] generalized threat of violence in Mexico that would cause [him] to be
harmed should he be returned to Mexico.” Id. at 105. “Indeed, the Court does not
see any type of specific threat . . . that is any different from anyone else who has
been a long-time resident of the United States and is returning to Mexico.” Id. at
104. Additionally, the IJ found: (1) no evidence of past torture; (2) torture by the
police is directed primarily against cartel members; (3) no details surrounding his
2 The IJ also found that due to the nature of his criminal convictions, Mr. Chavarin-Parra was ineligible for asylum, withholding of removal, or withholding of removal under the CAT. He did not challenge the pretermission of these claims on appeal, and the BIA deemed the issues waived.
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uncles’ murders to support a threat of torture or violence based on kinship ties; and
(4) there were places in Mexico where he could safely relocate.
Moreover, the IJ found that “it is even less likely that [Mr. Chavarin-Parra]
would be tortured . . . with the acquiescence of a government official, or with a
government official turning a blind eye to the torture.” Id. at 105.
BIA
In affirming the IJ’s denial of CAT deferral, the BIA agreed with the IJ that
Mr. Chavarin-Parra failed to meet his burden. It stressed that the IJ’s findings were
based on the totality of the evidence, noting that the IJ specifically “acknowledged
[Mr. Chavarin-Parra’s] criminal conviction . . . [and also] found it speculative that
[his] likelihood of torture by cartels would be increased based on his family relation.”
Id. at 5. The BIA further rejected the argument that the IJ failed to “specifically
address whether he faces a likelihood of being kidnapped and tortured in Mexico.”
Id. To the contrary, the BIA noted that the IJ considered the likelihood of torture for
any reason.
The [IJ] stated that torture is a concern in Mexico, but the record did not support a specific threat of torture to [him] based on his kinship ties or based on any other reason. . . . We are not persuaded that the [IJ] overlooked any evidence of a specific threat . . . or of a heightened threat to [Mr. Chavarin-Parra] based on his personal characteristics or his probable future situation in Mexico.
Id. (quotation omitted) (emphasis added). In sum, while [Mr. Chavarin-Parra] may be at some risk of recruitment or harm by cartels, or other forms of 8 Appellate Case: 21-9563 Document: 010110726372 Date Filed: 08/18/2022 Page: 9
violence in Mexico, he was not tortured in the past and has not established more than a speculative possibility—as opposed to a likelihood—that he will be tortured in Mexico in the future.
Id. at 6.
The BIA also noted Mr. Chavarin-Parra’s failure to identify specific evidence
showing government acquiescence to torture. Instead, he “only cite[d] to generalized
evidence . . . regarding the lack of response of the government to torture in Mexico.”
Id. at 5. The BIA said that “generalized evidence of the Mexican government’s
struggles to respond to widespread violence is not sufficient to establish
acquiescence,” id. at 5-6 (citing Ferry v. Gonzales, 457 F.3d 1117, 1131 (10th Cir.
2006)).
The BIA finally rejected Mr. Chavarin-Parra’s argument that the IJ improperly
denied his motion for a continuance. It determined that the IJ’s findings regarding
the “the probable time frame under which . . . [the] request for adjudication . . . might
take” and his detained status were sufficient grounds to deny the motion under the
agency’s precedents. Id. at 6.
II. DISCUSSION
Where, as here, a single member of the BIA issued an order affirming the IJ’s
decision, we review “both the decision of the BIA and any parts of the IJ’s decision
relied on by the BIA in reaching its conclusion.” Razkane v. Holder, 562 F.3d 1283,
1287 (10th Cir. 2009); see also Uanreroro v. Gonzales, 443 F.3d 1197, 1204
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(10th Cir. 2006) (explaining that when the BIA’s decision provides “a condensed
version” of the IJ’s reasons for the decision, we may consult “the IJ’s more complete
discussion” to “give substance to the BIA’s reasoning”).
A. CAT Deferral
Jurisdiction and Standard of Review
The jurisdictional bar to reviewing factual challenges to final orders of
removal in 8 U.S.C. § 1252(a)(2)(C) does not preclude judicial review of a
noncitizen’s factual challenges to an order denying CAT protection. See Nasrallah v.
Barr, 140 S. Ct. 1683, 1690-91 (2020). Mr. Chavarin-Parra brings factual challenges
here.
Our review of the agency’s factual findings is highly deferential. See id. at
1692 (“Although a noncitizen may obtain judicial review of factual challenges to
CAT orders, that review is highly deferential.”). We must affirm the agency’s
decision if it is “supported by reasonable, substantial, and probative evidence on the
record considered as a whole.” Yuk v. Ashcroft, 355 F.3d 1222, 1233 (10th Cir.
2004) (quotation omitted). Under this substantial-evidence standard, the agency’s
“findings of fact are conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). “[E]ven if we
disagree with the BIA’s [findings], we will not reverse if they are supported by
substantial evidence and are substantially reasonable.” Htun v. Lynch, 818 F.3d
1111, 1119 (10th Cir. 2016) (brackets and quotation omitted); see also Vladimirov v.
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Lynch, 805 F.3d 955, 960 (10th Cir. 2015) (explaining that when evaluating whether
substantial evidence supports an agency’s judgment, we do not “reweigh the
evidence”).
Legal Background
A noncitizen like Mr. Chavarin-Parra who is ineligible for asylum or
withholding of removal under either the Immigration and Nationality Act or the CAT
remains eligible for CAT deferral. 8 C.F.R. §§ 1208.16(c)(4), 1208.17(a). To
establish such a claim, the noncitizen must first prove “it is more likely than not that
he or she would be tortured if removed to the proposed country of removal.” Id.
§ 1208.16(c)(2). “Torture is defined as any act by which severe pain or suffering,
whether physical or mental, is intentionally inflicted on a person.” Id.
§ 1208.18(a)(1).
To meet this burden, the noncitizen must demonstrate a personal risk of
torture. See In re J-E-, 23 I. & N. Dec. 291, 303 (B.I.A. 2002) (en banc) (“The
United Nations Committee Against Torture has consistently held that the existence of
a consistent pattern of gross, flagrant, or mass violations of human rights in a
particular country does not, as such, constitute sufficient grounds for determining that
a particular person would be in danger of being subjected to torture upon his return to
that country.” Instead, “[s]pecific grounds must exist that indicate the individual
would be personally at risk.” (footnote omitted)), overruled on other grounds by
Azanor v. Ashcroft, 364 F.3d 1013 (9th Cir. 2004). See also Escobar-Hernandez v.
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Barr, 940 F.3d 1358, 1362 (10th Cir. 2019) (noting that “by itself, pervasive violence
in an applicant’s country generally is insufficient to demonstrate the applicant is
more likely than not to be tortured upon returning there”).
In assessing the likelihood of torture, the factfinder must consider “all
evidence relevant to the possibility of future torture . . . including, but not limited
to . . . [e]vidence of past torture”; the applicant’s ability to relocate “to a part of the
country of removal where he or she is not likely to be tortured”; “[e]vidence of gross,
flagrant or mass violations of human rights within the country of removal”; and
“[o]ther relevant information regarding conditions in the country of removal.” Id.
§ 1208.16(c)(3)(i)-(iv).
The second requirement of a CAT deferral claim is consent or acquiescence of
the government. For “severe pain or suffering” to warrant deferral of removal under
the CAT, it must be “inflicted by, or at the instigation of, or with the consent or
acquiescence of, a public official acting in an official capacity or other person acting
in an official capacity.” 8 C.F.R. § 1208.18(a)(1). “Acquiescence of a public official
requires that the public official, prior to the activity constituting torture, have
awareness of such activity and thereafter breach his or her legal responsibility to
intervene to prevent such activity.” Id. § 1208.18(a)(7). “This standard does not
require actual knowledge, or willful acceptance by the government. Rather, willful
blindness suffices to prove acquiescence.” Karki v. Holder, 715 F.3d 792, 806
(10th Cir. 2013) (citation and quotation omitted). Evidence of police corruption or
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inability to prevent torture does not compel a finding of acquiescence. See, e.g.,
Ferry, 457 F.3d at 1131 (petitioner failed to show acquiescence where the record
showed the government had made efforts to prevent potential torture); see also Cruz-
Funez v. Gonzales, 406 F.3d 1187, 1192 (10th Cir. 2005) (evidence of government
corruption and underfunding of police did not compel a conclusion of government
acquiescence).
Analysis
According to Mr. Chavarin-Parra, substantial evidence does not support the
agency’s finding that he would not likely be tortured. We disagree. Mr. Chavarin-
Parra fails to overcome the highly deferential substantial-evidence standard, which
provides that the agency’s factual findings are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary. See Nasrallah, 140 S.
Ct. at 1692; see also 8 U.S.C. § 1252(b)(4)(B).3
3 Mr. Chavarin-Parra fails to address the agency’s finding that the Mexican government would not acquiesce in torture. But even if he had presented an adequate argument, the record supports the agency’s finding. Although Dr. Kirkland testified there are problems with police corruption, he acknowledged that the Mexican government began to crack down on the drug cartels more than 20 years ago. He described several specific steps taken to combat cartel violence. As the BIA noted, and Mr. Chavarin-Parra never disputes, “generalized evidence of the Mexican’s government’s struggles to respond to widespread violence is not sufficient to establish acquiescence.” Admin. R., Vol. 1 at 5-6. The agency’s finding that the Mexican government would not acquiesce to torture is supported by substantial evidence. See Karki, 715 F.3d at 806 (quotation omitted). See also Ferry, 457 F.3d at 1131; Cruz-Funez, 406 F.3d at 1192.
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First, Mr. Chavarin-Parra argues that “the IJ failed to make a factual finding
on whether [he] would more likely than not be tortured if he returned to Mexico
because he has a criminal record.” Pet’r’s Opening Br. at 19. He is mistaken. The IJ
specifically mentioned “his criminal record [and] that he may be targeted for
recruitment[,] [a]nd if he resists . . . he could be harmed by cartels.” Admin. R., Vol.
1 at 97. But after “consider[ing] all of the evidence in the record, and all evidence
relevant to the possibility that [he] would experience torture in the future,” the IJ did
“not see a specific threat . . . based . . . on any reason.” Id. at 104 (emphasis added).
The BIA also reviewed the issue and determined that the IJ did not overlook
this matter. “Contrary to [Mr. Chavarin-Parra’s] arguments, the [IJ] discussed the
specific facts that might increase the likelihood of torture. . . . While the [IJ] may not
have specifically mentioned each and every factor, the [IJ] stated that all evidence
had been considered.” Id. at 4-5 (citation omitted).” Moreover, “[i]t is clear from
the [IJ’s] detailed recounting of the evidence that the [IJ] did not disregard evidence.”
Thus, the BIA was “not persuaded that the [IJ’s] findings of fact are not based on the
totality of the evidence.” Id. at 5.
Second, Mr. Chavarin-Parra maintains that the IJ ignored the evidence
concerning his kinship ties to cartel members and how those ties would lead to him
being tortured or killed. But he conceded that he did not know who murdered his
uncles or why they were murdered. Nor did he know which cartel they belonged to
or any other details of their lives, having never met any of them other than Sexto.
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Thus, substantial evidence supports the IJ’s finding that there was no likely threat of
torture. As the IJ explained, “the motivation behind these killings, the reasons, who
did it, those types of details are completely lacking from [Mr. Chavarin-Parra’s]
evidence. As a result, the Court does not see a specific threat [of torture] . . . based
on his kinship ties or based on any other reason.” Id. at 104.
Also, Mr. Chavarin-Parra overstates the record when he says that he “produced
evidence from an expert witness and an expert report showing a strong likelihood of
being tortured if returned to Mexico due to his connections to family members who
were cartel members.” Pet’r’s Opening Br. at 21-22 (emphasis added). There is no
such expert evidence. Instead, the evidence he cites is his own testimony.
Third, Mr. Chavarin-Parra argues that the IJ overlooked evidence that he
would likely be tortured as a returning deportee from the United States. He says that
he “provided testimony and evidence that he would be targeted [for torture] . . . as a
returning deportee.” Id. at 24 (quotation omitted). But Dr. Kirkland testified only
that returning deportees are sometimes shunned and have a hard time finding
employment, adding that those who lack ties to the community may be targeted for
recruitment by the cartels. He said nothing about torture or violence. And although
Dr. Kirkland mentioned that returning deportees who have relatives in the United
States might be at a greater risk for kidnapping, Mr. Chavarin-Parra presented no
evidence that he was at greater risk than other returning deportees in the same
circumstances. Substantial evidence supports the IJs finding that there was no “type
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of specific threat to [Mr. Chavarin-Parra] that is any different from anyone else who
has been a long-time resident of the United States and is returning to Mexico.”
Admin. R., Vol. 1 at 104.
B. Motion to Continue
Because Mr. Chavarin-Parra was convicted of a conspiracy involving a
controlled substance, our jurisdiction is limited. Under 8 U.S.C. § 1252(a)(2)(C),
“No court shall have jurisdiction to review any final order of removal against an alien
who is removable by reason of having committed a criminal offense covered in
section 1182(a)(2).”). But we may review the removal to the extent that the
noncitizen raises a constitutional claim or question of law. See id.
§ 1252(a)(2)(D) (“Nothing in subparagraph . . . (C), . . . which limits or eliminates
judicial review, shall be construed as precluding review of constitutional claims or
questions of law raised upon a petition for review.”). A noncitizen “does not present
a [legal] claim capable of avoiding the jurisdictional bar by arguing that the evidence
was incorrectly weighed, insufficiently considered, or supports a different outcome.”
Kechkar v. Gonzales, 500 F.3d 1080, 1084 (10th Cir. 2007).
“[T]he application of law to undisputed or established facts is a question of
law within the meaning of § 1252(a)(2)(D).” Guerrero-Lasprilla v. Barr, 140 S. Ct.
1062, 1069 (2020) (brackets and quotation omitted). Thus, we retain jurisdiction to
consider Mr. Chavarin-Parra’s challenge to the denial of his motion for a continuance
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insofar as it concerns whether the agency properly applied its precedent to undisputed
or established facts. Our review of this legal question is de novo. See Mena-Flores
v. Holder, 776 F.3d 1152, 1162 (10th Cir. 2015).
“An [IJ] may grant a motion for continuance only ‘for good cause shown,’
within [the judge’s] sound discretion.” In re Villarreal-Zuniga, 23 I. & N. Dec. 886,
891 (B.I.A. 2006) (quoting 8 C.F.R. § 1003.29). The party seeking a continuance
bears the burden of showing good cause. Matter of L-A-B-R-, 27 I. & N. Dec. 405,
413 (A.G. 2018).
In Matter of Sanchez Sosa, 25 I. & N. Dec. 807, 812-13 (B.I.A. 2012), the BIA
explained that in assessing whether there is “good cause” to grant a continuance
pending the adjudication of a U-visa application, the IJ should consider several
factors, including: “(1) the DHS’s response to the motion; (2) whether the
underlying visa petition is prima facie approvable; and (3) the reason for the
continuance and other procedural factors.”
The Attorney General refined the Sanchez Sosa analytical framework in Matter
of L-A-B-R-, to provide that the agency should consider and balance “all relevant
factors” in assessing whether there is “good cause” to continue proceedings to
accommodate a collateral matter such as a visa petition. 27 I. & N. Dec. at 413. The
primary factors to be considered are: “the likelihood that the alien will receive the
pursued collateral relief,” and whether that “relief will materially affect the outcome
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of the removal proceedings.” Id. at 415. There are also “secondary factors” that
should be considered, which include, “the [alien’s] diligence in seeking collateral
relief, DHS’s position on the motion for continuance, and concerns of administrative
efficiency.” Id. “It may also be appropriate to consider the length of the continuance
requested, the number of hearings held and continuances granted previously, and the
timing of the continuance motion.” Id.
But L-A-B-R- was not the agency’s final word on the issue. In Matter of L-N-
Y-, 27 I. & N. Dec. 755, 758 (B.I.A. 2020), the BIA explained that the “primary
factors [such as prima facie eligibility for a U-visa] are not dispositive” “especially
. . . where . . . there are relevant secondary factors that weigh against continuing the
proceedings—in particular, . . . concerns regarding administrative efficiency, which
include the uncertainty as to when a visa will be approved or become available and
the [alien’s] detained status.” (emphasis added). Specifically, IJs should hesitate in
granting indeterminate continuances for detained aliens because “[g]ranting an
indeterminate continuance greatly impacts administrative efficiency in a typical case,
but particularly where . . . the alien is detained.” Id. at 759.
Mr. Chavarin-Parra maintains that the IJ failed to follow agency precedent in
ruling on his motion for a continuance. We disagree. The IJ considered the relevant
secondary factors discussed in Matter of L-N-Y-, including the uncertainty as to when
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a U-visa might be granted and Mr. Chavarin-Parra’s detained status. There was no
legal error.
Nor was the IJ required to discuss every factor, including whether
Mr. Chavarin-Parra was prima facie eligible for a U-visa. All that is required is for
the IJ “to announce [his] decision in terms sufficient to enable a reviewing court to
perceive that [he] has heard and thought and not merely reacted.” Mena-Flores,
776 F.3d at 1171 (quotation omitted). Here, the IJ considered that the U-visa
timeline was indefinite and could take years, and Mr. Chavarin-Parra was detained
and unlikely to be released. This was sufficient for our review.
III. CONCLUSION
We deny the petition for review.
Entered for the Court
Scott M. Matheson, Jr. Circuit Judge