Edelmira Salayes Araiza v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 12, 2019
• Docket: 16-71000
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 12 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

EDELMIRA BACA NORIEGA SALAYES No. 16-71000 ARAIZA, Agency No. A087-244-853 Petitioner,

v. MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted June 10, 2019** Honolulu, Hawaii

Before: THOMAS, Chief Judge, and CALLAHAN and CHRISTEN, Circuit Judges.

Petitioner Edelmira Salayes Araiza, a native and citizen of Mexico, petitions

for review of a Board of Immigration Appeals’ (BIA) dismissal of her appeal

challenging the immigration judge’s (IJ) denial of a continuance to prepare the

* 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). case and file an application for relief from removal. Specifically, Salayes Araiza

argues that the IJ should have granted her motion for a continuance so that her

attorney, whom she had retained the day before her final hearing, could prepare for

the case and locate and submit her written application for relief. She also argues

that a continuance was warranted in light of her pending collateral attack in state

court on her criminal conviction, which, if successful, would impact her eligibility

for forms of relief from removal. We have jurisdiction under 8 U.S.C. § 1252, and

we deny the petition.

“The question whether denial of a continuance in an immigration proceeding

constitutes an abuse of discretion cannot be decided through the application of

bright-line rules; it must be resolved on a case by case basis according to the facts

and circumstances of each case.” Baires v. INS, 856 F.2d 89, 91 (9th Cir.1988)

(citation omitted). When evaluating an IJ’s denial of a motion for continuance, we

have considered factors such as the number of prior continuances and their

duration, the reasonableness of the immigrant’s conduct, the inconvenience to the

immigration court, the nature of the evidence to be presented and its importance to

the alien’s claim, and whether the denial of the continuance violates the

immigrant’s rights. See id. at 91-93.

Given the totality of the circumstances, the IJ’s denial of a continuance was

not an abuse of discretion. See Rios-Berrios v. INS, 776 F.2d 859, 862 (9th Cir.

2 1985) (“[T]he decision to grant or deny continuances is in the sound discretion of

the trial judge and will not be overturned except on a showing of clear abuse.”).

The IJ had previously granted Salayes Araiza a total of five continuances in the

five months that had elapsed since her initial hearing, and she had repeatedly failed

to comply with his directives and deadlines, particularly in regard to the

submission of her application for relief.

Moreover, Salayes Araiza has not shown how the denial of the continuance

violated her rights or caused her prejudice. With regard to her right to present

evidence, see 8 U.S.C. § 1229a(b)(4)(B), Salayes Araiza does not specify what

evidence or witnesses she would have presented if her requested continuance had

been granted. The IJ questioned Salayes Araiza about her claims and fairly

developed her testimony during the hearing, and Salayes Araiza has not challenged

any of his actual findings of fact or legal conclusions. While a delay presumably

would have allowed counsel to locate and submit Salayes Araiza’s written

application, she does not explain what relevant information the application would

have contained, or how it would have differed from her in-hearing testimony or

changed the outcome of her immigration proceeding.

Salayes Araiza likewise has not explained how the denial of the continuance

might have affected her right to counsel, see 8 U.S.C. § 1229a(b)(4)(A). In some

cases, where a retained attorney has failed to appear at the merits hearing, we have

3 found that the IJ’s denial of a requested continuance effectively denied the

immigrant’s right to counsel. See, e.g., Hernandez-Gil v. Gonzales, 476 F.3d 803

(9th Cir. 2007); Montes-Lopez v. Holder, 694 F.3d 1085 (9th Cir. 2012). Here,

however, Salayes Araiza’s counsel was present for the hearing and given an

opportunity to ask questions and elucidate her client’s claims for relief. As such,

the IJ’s decision to proceed with the merits hearing did not deny Salayes Araiza

her right to counsel.

As Salayes Araiza fails to demonstrate any violation of her rights, she is also

unable to show she suffered any prejudice due to the denied continuance. See

Gomez-Velazco v. Sessions, 879 F.3d 989, 993 (9th Cir. 2018) (“As a general rule,

an individual may obtain relief for a due process violation only if he shows that the

violation caused him prejudice, meaning the violation potentially affected the

outcome of the immigration proceeding.”). Thus, we affirm the agency’s denial of

a continuance and deny the petition for review.

PETITION DENIED.