Francisco Noriega-Bejarano v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 18, 2022
• Docket: 19-72943
• Status: Unpublished

Opinion

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT FEB 18 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FRANCISCO ANTONIO NORIEGA- No. 19-72943 BEJARANO, AKA Francisco Antonio Bejarano, AKA Antonio Rodriguez- Agency No. A205-931-030 Huerta, AKA Antonio Rodriguez-Vuelta,

Petitioner, MEMORANDUM*

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted February 16, 2022** San Francisco, California

Before: SILER,*** S.R. THOMAS, and CALLAHAN, Circuit Judges.

* 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). *** The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. Francisco Noriega-Bejarano, a native and citizen of Mexico, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal

from an Immigration Judge’s (“IJ”) denial of his application for cancellation of

removal and his motion for a continuance. We have jurisdiction pursuant to 8

U.S.C. § 1252.

We review de novo jurisdictional issues and claims of legal or constitutional

error. Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1245 (9th Cir. 2008) (per

curiam). We review for abuse of discretion the denial of a continuance. Id. at

1246. Where, as here, the BIA has conducted a de novo review of the IJ’s

decision, we review the BIA’s decision and any of the IJ’s reasoning that the BIA

has incorporated as its own. Aguilar-Ramos v. Holder, 594 F.3d 701, 704 (9th Cir.

2010). We dismiss in part and deny in part the petition for review.

I

We lack jurisdiction to review Noriega-Bejarano’s various challenges to the

agency’s discretionary determination that his removal would not result in the

requisite hardship to his qualifying family members. See Vilchiz-Soto v. Holder,

688 F.3d 642, 644 (9th Cir. 2012); 8 U.S.C. §§ 1229b(b)(1), 1252(a)(2)(B)(i).

Most of Noriega-Bejarano’s contentions are simply “an attempt to ‘cloak[] an

abuse of discretion argument’ in the garb of a question of law.” Mendez-Castro v.

2 Mukasey, 552 F.3d 975, 980 (9th Cir. 2009) (alteration in original) (quoting

Torres-Aguilar v. INS, 246 F.3d 1267, 1271 (9th Cir. 2001)). Insofar as Noriega-

Bejarano challenges the legal standard applied by the agency, we lack jurisdiction

over this argument because it is not colorable: The IJ and the BIA cited and

applied the relevant legal standards in assessing hardship in the aggregate, “which

is all our review requires.” Id.; see also Vilchiz-Soto, 688 F.3d at 644 (explaining

we retain jurisdiction to review only “colorable legal or constitutional claim[s]”).

II

The BIA did not abuse its discretion by affirming the IJ’s decision that

Noriega-Bejarano lacked good cause for a continuance, where Noriega-Bejarano

had already been granted several lengthy continuances, the government opposed

the latest request, and Noriega-Bejarano has never been able to identify with any

specificity what additional evidence might have been introduced had the

continuance been granted. See Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir.

2009) (listing considerations relevant to the “good cause” inquiry); see also Hui

Ran Mu v. Barr, 936 F.3d 929, 936 (9th Cir. 2019) (excusing the agency’s failure

to expressly address the “good cause” factors listed in Ahmed where the agency’s

reasoning was otherwise adequate). Consequently, the denial of the continuance

also did not violate Noriega-Bejarano’s constitutional right to due process. See

3 Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (holding that a petitioner must

show error and substantial prejudice to prevail on a due process claim).

III

Although Noriega-Bejarano has not properly raised his claims of ineffective

assistance of counsel to the BIA, the BIA order’s sua sponte discussion of

ineffective assistance at the IJ proceedings was enough to vest us with jurisdiction

over that portion of his claims. See Parada v. Sessions, 902 F.3d 901, 914 (9th

Cir. 2018) (“It is well-established that we may review any issue addressed on the

merits by the BIA, regardless of whether the petitioner raised it before the

agency.”). Nonetheless, we deny his claim on the merits because we agree with the

BIA that Noriega-Bejarano has not adequately shown how he was prejudiced by

his former attorney’s conduct during the IJ proceedings. See Iturribarria v. INS,

321 F.3d 889, 901–02 (9th Cir. 2003). To the extent that Noriega-Bejarano’s

petition asserts other discrete claims of ineffective assistance of counsel that the

BIA’s decision did not address and which he has not yet raised before the agency,

we dismiss them for lack of jurisdiction. See Ontiveros-Lopez v. INS, 213 F.3d

1121, 1124 (9th Cir. 2000).

PETITION DISMISSED in part, DENIED in part.