Gonzalez v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 14, 2024
• Docket: 23-2192
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION NOV 14 2024 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

LISANDRO GONZALEZ, No. 23-2192

Petitioner, Agency No. A092-065-799 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted November 12, 2024** San Francisco, California

Before: S.R. THOMAS and MILLER, Circuit Judges, and MOLLOY, District Judge.***

* 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 Donald W. Molloy, United States District Judge for the District of Montana, sitting by designation. Petitioner Lisandro Gonzalez, a native and citizen of Mexico, petitions for

review of the Board of Immigration Appeal’s (“BIA”) dismissal of his appeal of an

Immigration Judge’s (“IJ”) denial of his request for a continuance of a hearing on

his application for deferral under the Convention Against Torture (“CAT”).

Because the parties are familiar with the factual and procedural history of the case,

we need not recount it here.

We have jurisdiction pursuant to 8 U.S.C. § 1252. Where, as here, the BIA

has not “expressly adopted the IJ’s opinion,” we “limit our review to the BIA’s

decision.” Pleitez-Lopez v. Barr, 935 F.3d 716, 719 (9th Cir. 2019). We review

the denial of a continuance for abuse of discretion. Ahmed v. Holder, 569 F.3d

1009, 1012 (9th Cir. 2009). We review questions of law de novo and findings of

fact for substantial evidence. Id. We deny the petition for review.

The agency did not abuse its discretion by denying Gonzalez’s request for a

continuance. Under 8 C.F.R. § 1003.29, an IJ “may grant a motion for continuance

for good cause shown.” The regulations do not define “good cause.” There are no

“bright-line rules” for deciding whether a denial of a continuance is an abuse of

discretion. Baires v. INS, 856 F.2d 89, 91 (9th Cir. 1988). Rather, the issue “must

be resolved on a case by case basis.” Id.

2 In assessing the denial of a motion for a continuance, we consider several

factors, including: “(1) the importance of the evidence, (2) the unreasonableness of

the immigrant’s conduct, (3) the inconvenience to the court, and (4) the number of

continuances previously granted.” Cui v. Mukasey, 538 F.3d 1289, 1292 (9th Cir.

2008); see also Ahmed, 569 F.3d at 1012. The agency need not “expressly

address” all of the factors so long as it “sufficiently outline[s] why good cause did

not exist.” Hui Ran Mu v. Barr, 936 F.3d 929, 936 (9th Cir. 2019). Here, the

agency sufficiently outlined its reasons for denying the continuance and did not

abuse its discretion.

First, Gonzalez has not specifically identified or tendered the evidence he

planned to research if granted a continuance. The agency is “not required to grant

a continuance based on . . . speculations.” Singh v. Holder, 638 F.3d 1264, 1274

(9th Cir. 2011). Therefore, on appellate review, the first factor weighs against

Gonzalez.

Second, even though he faced barriers as a detained, pro se litigant,

Gonzalez received clear instructions from the IJ about the timeline and

requirements for preparing his CAT claim. See, e.g., Biwot v. Gonzales, 403 F.3d

1094, 1098-99 (9th Cir. 2005) (explaining immigration law and regulations are “a

labyrinth that only a lawyer could navigate” and recognizing that incarceration

3 “increases the difficulty of contacting prospective attorneys”). He had three

months to gather evidence from the time he was first instructed about his eligibility

for CAT relief, and gathered no evidence in that time. We have upheld the denial

of a continuance for petitioners who received less time to prepare. Singh, 638 F.3d

at 1273-74 (one three-and-a-half week continuance). This factor weighs against

him.

Third, there was no evidence of inconvenience to the court. The Department

of Homeland Security did not oppose a continuance during the hearing, and the

agency made no finding of inconvenience. See Ahmed, 569 F.3d at 1013

(government’s lack of objection to a continuance weighs in favor of granting).

Therefore, the third factor weighs in favor of granting the continuance.

Finally, the fourth factor weighs against granting a continuance because

Gonzalez was granted several prior continuances. Gonzalez’s hearing was

continued four times over two months for Gonzalez to find an attorney. His case

was then continued five times from January 12, 2023 through April 24, 2023. Four

of these continuances were granted for Gonzalez to prepare his CAT application,

although three were also granted to allow the government time to investigate

Gonzalez’s murder conviction records. We have held that denying a continuance

was justified in situations where the petitioner received far fewer prior

4 continuances. See, e.g., Singh, 638 F.3d at 1273-74 (one continuance); Gonzalez-

Veliz v. Garland, 996 F.3d 942, 949 (9th Cir. 2021) (one continuance). Because

Gonzalez was granted several prior continuances, this factor weighs against

granting a continuance.

Thus, considering the Cui factors, the agency did not abuse its discretion in

denying a continuance. The agency did not expressly address all four factors in its

decision, but sufficiently outlined why there was not good cause to grant a

continuance given the time Gonzalez had to prepare and the prior continuances

granted.

PETITION DENIED.