NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 10 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
HECTOR LEONEL GRAMAJO LOPEZ, No. 23-191 Agency No. Petitioner, A095-291-116 v. MEMORANDUM* PAMELA J. BONDI, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted February 7, 2025** Pasadena, California
Before: WARDLAW, CALLAHAN, and HURWITZ, Circuit Judges. Dissent by Judge WARDLAW.
Hector Leonel Gramajo Lopez petitions for review of two decisions by the
Board of Immigration Appeals (“BIA”) dismissing appeals from two orders of an
Immigration Judge (“IJ”). The first ordered Gramajo Lopez removed after the IJ
* 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). determined that he had abandoned an application for a “212(h) waiver” of
inadmissibility, see 8 U.S.C. § 1182(h), through which he sought to become eligible
for a family-based visa. The second order denied Gramajo Lopez’s motion to
reconsider the removal order. We dismiss the petition for review in part and deny it
in part.
1. The IJ found Gramajo Lopez removable based on his conviction under
California Penal Code § 211 for robbery, an aggravated felony. See United States v.
Martinez-Hernandez, 932 F.3d 1198, 1202 (9th Cir. 2019). Congress has stripped us
of jurisdiction to review “any final order of removal” based on the commission of
an aggravated felony. 8 U.S.C. § 1252(a)(2)(C). That statute also prevents review of
the denial of a motion to reconsider, which merges into a final order of removal. See
Coria v. Garland, 114 F.4th 994, 1002 (9th Cir. 2024). However, we retain
jurisdiction to review “constitutional claims or questions of law” raised concerning
an order of removal. 8 U.S.C. § 1252(a)(2)(D). Gramajo Lopez’s petition for review
raises no constitutional claims, so we only have jurisdiction to consider it to the
extent it raises questions of law.
a. Gramajo Lopez first contends that the IJ “committed factual error” by
finding he had “not established good cause for noncompliance with the filing
deadline.” But “§ 1252(a)(2)’s jurisdiction-stripping provisions” clearly “operate to
2 23-191 exclude agency fact-finding from review.” Wilkinson v. Garland, 601 U.S. 209, 225
(2024) (cleaned up). We therefore dismiss the petition in part.
b. Gramajo Lopez also argues that the IJ erred in finding his application for
a § 212(h) waiver abandoned because it was not filed by the date mandated by a
prior order. Gramajo Lopez contends that his motion seeking to continue the hearing
at which the IJ planned to consider the waiver application should have been treated
as a motion for extension of the filing deadline and granted. As the government
acknowledges, this argument poses a legal question.
Even if the IJ could have construed the motion to continue the hearing as also
seeking an extension of the filing deadline there was no error. We share the BIA’s
“concerns” about the IJ’s choice not to expressly address the continuance before
issuing a decision finding the application abandoned because it was not timely filed.
But, as the BIA noted, the IJ’s order finding the application abandoned indicated
why the IJ chose not to extend the deadline, rejecting the assertion that Gramajo
Lopez and counsel “require additional time to gather hardship documents in support
of his 212(h) waiver” because the motion contained no explanation of what those
documents were, or why they had not been previously obtained. Because Gramajo
Lopez had previously been granted continuances of the application deadline totaling
seven months, we find no abuse of discretion in the agency’s decision. See Arrey v.
Barr, 916 F.3d 1149, 1158 (9th Cir. 2019).
3 23-191 2. Gramajo Lopez also contends that the agency committed an error of
law by characterizing his motion to reconsider as attempting to introduce new
evidence, rather than simply identifying error in the IJ’s abandonment decision. See
Socop-Gonzalez v. I.N.S., 272 F.3d 1176, 1180 n.2 (9th Cir. 2001) (en banc) (“The
purpose of a motion to reconsider is not to raise new facts, but rather to demonstrate
that the IJ or the BIA erred as a matter of law or fact.”) (overruled on other grounds
by Smith v. Davis, 953 F.3d 582 (9th Cir. 2020) (en banc)).
This issue presents a mixed question of law and fact that we have jurisdiction
to review. See Guerrero-Lasprilla v. Barr, 589 U.S. 221, 228 (2020). But we find
no error. As noted above, the motion to reconsider argued that Gramajo Lopez had
valid reasons for his inability to file the waiver application by the deadline. Because
those reasons were not mentioned in the motion to continue, the BIA correctly
treated them as newly asserted.1
Petition DISMISSED in part and DENIED in part.
1 The motion to reconsider asserted that Gramajo had previously indicated to the IJ “what evidence he still needed to gather prior to his hearing on the merits” and the difficulties he faced in obtaining that evidence. But although the IJ had considered those matters in granting a prior continuance, the motion to continue the hearing did not specify what evidence remained to be obtained and why it had not been previously obtained.
4 23-191 FILED MAR 10 2025 Gramajo Lopez v. Bondi, No. 23-191 MOLLY C. DWYER, CLERK WARDLAW, Circuit Judge, dissenting: U.S. COURT OF APPEALS
Respectfully, I dissent. The IJ committed an error of law by failing to address
the Hashmi factors when considering Gramajo’s motion for a continuance. Matter
of Hashmi, 24 I. & N. Dec. 785 (B.I.A. 2009). In Hashmi, the BIA enumerated five
factors that IJs should consider in deciding whether to grant a continuance of
removal proceedings pending the final adjudication of an I-130:
(1) the DHS response to the motion; (2) whether the underlying visa petition is prima facie approvable; (3) the respondent’s statutory eligibility for adjustment of status; (4) whether the respondent’s application for adjustment merits a favorable exercise of discretion; and (5) the reason for the continuance and other procedural factors.
Id. at 790. Hashmi deemed the first factor particularly important: “[i]f the DHS
affirmatively expresses a lack of opposition, the proceedings ordinarily should be
continued by the Immigration Judge in the absence of unusual, clearly identified,
and supported reasons for not doing so.” Id.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 10 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
HECTOR LEONEL GRAMAJO LOPEZ, No. 23-191 Agency No. Petitioner, A095-291-116 v. MEMORANDUM* PAMELA J. BONDI, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted February 7, 2025** Pasadena, California
Before: WARDLAW, CALLAHAN, and HURWITZ, Circuit Judges. Dissent by Judge WARDLAW.
Hector Leonel Gramajo Lopez petitions for review of two decisions by the
Board of Immigration Appeals (“BIA”) dismissing appeals from two orders of an
Immigration Judge (“IJ”). The first ordered Gramajo Lopez removed after the IJ
* 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). determined that he had abandoned an application for a “212(h) waiver” of
inadmissibility, see 8 U.S.C. § 1182(h), through which he sought to become eligible
for a family-based visa. The second order denied Gramajo Lopez’s motion to
reconsider the removal order. We dismiss the petition for review in part and deny it
in part.
1. The IJ found Gramajo Lopez removable based on his conviction under
California Penal Code § 211 for robbery, an aggravated felony. See United States v.
Martinez-Hernandez, 932 F.3d 1198, 1202 (9th Cir. 2019). Congress has stripped us
of jurisdiction to review “any final order of removal” based on the commission of
an aggravated felony. 8 U.S.C. § 1252(a)(2)(C). That statute also prevents review of
the denial of a motion to reconsider, which merges into a final order of removal. See
Coria v. Garland, 114 F.4th 994, 1002 (9th Cir. 2024). However, we retain
jurisdiction to review “constitutional claims or questions of law” raised concerning
an order of removal. 8 U.S.C. § 1252(a)(2)(D). Gramajo Lopez’s petition for review
raises no constitutional claims, so we only have jurisdiction to consider it to the
extent it raises questions of law.
a. Gramajo Lopez first contends that the IJ “committed factual error” by
finding he had “not established good cause for noncompliance with the filing
deadline.” But “§ 1252(a)(2)’s jurisdiction-stripping provisions” clearly “operate to
2 23-191 exclude agency fact-finding from review.” Wilkinson v. Garland, 601 U.S. 209, 225
(2024) (cleaned up). We therefore dismiss the petition in part.
b. Gramajo Lopez also argues that the IJ erred in finding his application for
a § 212(h) waiver abandoned because it was not filed by the date mandated by a
prior order. Gramajo Lopez contends that his motion seeking to continue the hearing
at which the IJ planned to consider the waiver application should have been treated
as a motion for extension of the filing deadline and granted. As the government
acknowledges, this argument poses a legal question.
Even if the IJ could have construed the motion to continue the hearing as also
seeking an extension of the filing deadline there was no error. We share the BIA’s
“concerns” about the IJ’s choice not to expressly address the continuance before
issuing a decision finding the application abandoned because it was not timely filed.
But, as the BIA noted, the IJ’s order finding the application abandoned indicated
why the IJ chose not to extend the deadline, rejecting the assertion that Gramajo
Lopez and counsel “require additional time to gather hardship documents in support
of his 212(h) waiver” because the motion contained no explanation of what those
documents were, or why they had not been previously obtained. Because Gramajo
Lopez had previously been granted continuances of the application deadline totaling
seven months, we find no abuse of discretion in the agency’s decision. See Arrey v.
Barr, 916 F.3d 1149, 1158 (9th Cir. 2019).
3 23-191 2. Gramajo Lopez also contends that the agency committed an error of
law by characterizing his motion to reconsider as attempting to introduce new
evidence, rather than simply identifying error in the IJ’s abandonment decision. See
Socop-Gonzalez v. I.N.S., 272 F.3d 1176, 1180 n.2 (9th Cir. 2001) (en banc) (“The
purpose of a motion to reconsider is not to raise new facts, but rather to demonstrate
that the IJ or the BIA erred as a matter of law or fact.”) (overruled on other grounds
by Smith v. Davis, 953 F.3d 582 (9th Cir. 2020) (en banc)).
This issue presents a mixed question of law and fact that we have jurisdiction
to review. See Guerrero-Lasprilla v. Barr, 589 U.S. 221, 228 (2020). But we find
no error. As noted above, the motion to reconsider argued that Gramajo Lopez had
valid reasons for his inability to file the waiver application by the deadline. Because
those reasons were not mentioned in the motion to continue, the BIA correctly
treated them as newly asserted.1
Petition DISMISSED in part and DENIED in part.
1 The motion to reconsider asserted that Gramajo had previously indicated to the IJ “what evidence he still needed to gather prior to his hearing on the merits” and the difficulties he faced in obtaining that evidence. But although the IJ had considered those matters in granting a prior continuance, the motion to continue the hearing did not specify what evidence remained to be obtained and why it had not been previously obtained.
4 23-191 FILED MAR 10 2025 Gramajo Lopez v. Bondi, No. 23-191 MOLLY C. DWYER, CLERK WARDLAW, Circuit Judge, dissenting: U.S. COURT OF APPEALS
Respectfully, I dissent. The IJ committed an error of law by failing to address
the Hashmi factors when considering Gramajo’s motion for a continuance. Matter
of Hashmi, 24 I. & N. Dec. 785 (B.I.A. 2009). In Hashmi, the BIA enumerated five
factors that IJs should consider in deciding whether to grant a continuance of
removal proceedings pending the final adjudication of an I-130:
(1) the DHS response to the motion; (2) whether the underlying visa petition is prima facie approvable; (3) the respondent’s statutory eligibility for adjustment of status; (4) whether the respondent’s application for adjustment merits a favorable exercise of discretion; and (5) the reason for the continuance and other procedural factors.
Id. at 790. Hashmi deemed the first factor particularly important: “[i]f the DHS
affirmatively expresses a lack of opposition, the proceedings ordinarily should be
continued by the Immigration Judge in the absence of unusual, clearly identified,
and supported reasons for not doing so.” Id. at 791; see also Malilia v. Holder, 632
F.3d 598, 607 (9th Cir. 2011) (“It is generally an abuse of discretion to deny an
unopposed request for a continuance.”). The Government did not oppose
Gramajo’s request.
Moreover, other Hashmi factors also favor granting the continuance. As to
the second factor, the IJ stated on the record that Gramajo’s underlying visa
1 petition was prima facie approvable.1 The third factor, Gramajo’s statutory
eligibility for adjustment of status, appears satisfied based on DHS’s concession.
The IJ also should have weighed the fourth and fifth factors, considering the
positive and negative discretionary factors in the record, as well as the
circumstances of the continuance request. Hashmi, 24 I. & N. Dec. at 793. But the
IJ did not conduct this analysis here; nor did he provide any “unusual, clearly
identified, and supported reasons” to justify the denial of an unopposed
continuance motion, as Hashmi requires. Id. at 791.
Whether an immigrant’s claim for relief is heard on the merits should not
depend on the whims of the particular IJ presiding over the matter. That is why IJs
must “articulate, balance, and explain all these relevant factors” when reaching a
decision. Id. at 794. This analysis is particularly critical where, as here, Gramajo
is statutorily eligible for relief. Therefore, I would remand the proceedings to
properly consider the continuance motion.
1 The I-130 has since been approved. 2