Jose D. J. Hernandez-Esparza v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 27, 2022
• Docket: 20-71816
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 27 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSE DE JESUS HERNANDEZ- No. 20-71816 ESPARZA, Agency No. A089-906-518 Petitioner,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted January 19, 2022**

Before: SILVERMAN, CLIFTON, and HURWITZ, Circuit Judges.

Jose de Jesus Hernandez-Esparza, a native and citizen of Mexico, petitions

for review of the Board of Immigration Appeals’ (“BIA”) order denying his

motion to terminate and dismissing his appeal from an immigration judge’s (“IJ”)

decision denying his request to continue his removal proceedings. We have

* 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). jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of

a continuance. Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009). We review

de novo claims of due process violations in immigration proceedings. Simeonov v.

Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004). We deny the petition for review.

Hernandez-Esparza does not raise, and therefore waives, any challenge to

the BIA’s denial of his motion to terminate proceedings. See Lopez-Vasquez v.

Holder, 706 F.3d 1072, 1079-80 (9th Cir. 2013) (issues not specifically raised and

argued in a party’s opening brief are waived). Thus, we deny the petition for

review as to Hernandez-Esparza’s motion to terminate.

Hernandez-Esparza’s contentions that the agency used the wrong standard of

review or otherwise erred in its legal analysis fail. See Lata v. INS, 204 F.3d 1241,

1246 (9th Cir. 2000) (requiring error to prevail on a due process claim); see also

Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010) (the agency adequately

considered evidence and sufficiently announced its decision).

The agency did not abuse its discretion in denying Hernandez-Esparza’s

request for a continuance where he failed to demonstrate good cause. See 8 C.F.R.

§ 1003.29 (an IJ may grant a continuance for good cause shown); Ahmed, 569 F.3d

at 1012 (setting out the factors to consider in good cause analysis); see also Hui

Ran Mu v. Barr, 936 F.3d 929, 936 (9th Cir. 2019) (“Although the [agency] did not

expressly address the Ahmed factors, the IJ sufficiently outlined why good cause

2 20-71816 [for a continuance] did not exist.”); Matter of L-A-B-R-, 27 I.&N. Dec. 405, 413

(A.G. 2018) (whether a noncitizen’s collateral proceedings will materially affect

the outcome of their removal proceedings is one of the most important

considerations in the good-cause analysis). Thus, Hernandez-Esparza’s contention

that the agency violated his right to due process by denying his request for a

continuance fails. See Lata, 204 F.3d at 1246.

The temporary stay of removal remains in place until issuance of the

mandate.

PETITION FOR REVIEW DENIED.

3 20-71816