Jose Henriquez v. William Barr

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 10 2020 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS

JOSE HENRIQUEZ, No. 18-73269 Petitioner, Agency No. A073-985-989

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted December 8, 2020** Pasadena, California

Before: GRABER and COLLINS, Circuit Judges, and BOULWARE,*** District Judge.

Petitioner Jose Henriquez, a native and citizen of El Salvador, petitions for

review of the decision of the Board of Immigration Appeals (“BIA”) affirming the

order of the Immigration Judge (“IJ”) denying his request for a continuance and his

applications for asylum and for special rule cancellation of removal under 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 that this case is suitable for decision without oral argument. See FED. R. APP. P. 34(a)(2)(C). *** The Honorable Richard F. Boulware II, United States District Judge for the District of Nevada, sitting by designation. Nicaraguan Adjustment and Central American Relief Act (“NACARA”), Pub. L.

No. 105-100, 111 Stat. 2160 (Nov. 19, 1997), amended by Pub. L. No. 105-139,

111 Stat. 2644 (Dec. 2, 1997). We have jurisdiction under § 242 of the

Immigration and Nationality Act. 8 U.S.C. § 1252(a). We review for abuse of

discretion the denial of a continuance, Peng v. Holder, 673 F.3d 1248, 1253 (9th

Cir. 2012), and the BIA’s denial of humanitarian asylum, Belayneh v. INS, 213

F.3d 488, 491 (9th Cir. 2000). We review findings of fact for substantial evidence.

Hamazaspyan v. Holder, 590 F.3d 744, 747 (9th Cir. 2009). We grant the petition

in part, deny it in part, and remand for further proceedings.

1. The BIA properly upheld the IJ’s conclusion that Henriquez had failed to

show the requisite “good cause” for a continuance. 8 C.F.R. § 1003.29. Initial

removal proceedings in this case began in August 2006, almost twelve years before

the June 22, 2018 hearing at issue. Although the case was administratively closed

for much of that time, the case had been reopened for more than five months, since

January 3, 2018, and Henriquez was represented by counsel at the previous hearing

on May 18, 2018. Only a few weeks before the scheduled June 22, 2018 merits

hearing, Henriquez chose to terminate his relationship with his attorney. The IJ

thereafter granted that attorney’s written motion to withdraw on June 15, 2018, and

no attorney made any appearance or filed any papers before the scheduled June 22

hearing. At the June 22 hearing, Henriquez claimed that he had hired a new

2 attorney several weeks ago and that she needed time to prepare. But when

questioned, Henriquez could not supply her full name and could not explain her

absence beyond stating that she had told him “that she couldn’t make it today.” On

this record, the BIA properly concluded that the IJ did not abuse his discretion in

concluding that good cause for a continuance had not been shown. Nor did the IJ’s

denial of the requested continuance deprive Hernandez of a “full and fair

hearing.”1 Cf. Cruz Rendon v. Holder, 603 F.3d 1104, 1109–10 (9th Cir. 2010).

2. The agency did not abuse its discretion in denying Henriquez’s

application for humanitarian asylum. The BIA properly upheld the IJ’s conclusion

that the sexual abuse that Henriquez suffered as a child at the hands of a pastor in

El Salvador was not on account of a protected ground. See 8 C.F.R.

§ 1208.13(b)(1). Henriquez testified that he did not know why the pastor sexually

abused him, and the BIA concluded that “there was no indication that [the abuse]

was anything other than a criminal act committed by the abuser.” The record does

not compel a contrary conclusion.

3. We agree with Henriquez’s contention—which was raised below but

which the BIA overlooked—that the IJ failed to sufficiently develop the record

with respect to the critical issue of the date when Henriquez first entered the U.S.

1 Although Henriquez’s resulting pro se appearance did not deprive him of a full and fair hearing, it did trigger the IJ’s duty to sufficiently develop the record. See infra at 3–4.

3 For Salvadoran nationals to qualify for NACARA benefits, they must, inter alia,

have “first entered the United States on or before September 19, 1990.” See Illegal

Immigration Reform and Immigrant Responsibility Act of 1996,

§ 309(c)(5)(C)(i)(I)(aa), 8 U.S.C. § 1101 note (as added by NACARA, and as

subsequently amended); see also 8 C.F.R. § 1240.60(2); Cortez-Pineda v. Holder,

610 F.3d 1118, 1120 (9th Cir. 2010). All of the documents in the record that

address the timing of Henriquez’s initial entry—including, most notably, the

Notice to Appear—identify his date of entry into the U.S. as August 20, 1990. At

the June 22, 2018 hearing, Henriquez likewise testified that he had entered the U.S.

when he “was about 14 or 15-years-old,” which, given his October 1975 birthdate,

was consistent with an entry in August 1990. But when asked at the hearing to

name the year in which he entered, Henriquez twice stated “1992.” The IJ did not

inquire about or address the apparent discrepancy, nor did he offer Henriquez, who

was unrepresented, an opportunity to clarify or correct it. See Chen v. Ashcroft,

362 F.3d 611, 618 (9th Cir. 2004) (IJ should afford reasonable opportunity to

explain discrepancies in testimony); Agyeman v. INS, 296 F.3d 871, 877 (9th Cir.

2002) (“[W]hen the alien appears pro se, it is the IJ’s duty to fully develop the

record.” (internal quotation marks omitted)). Because the date of entry is critical

for determining NACARA eligibility, the IJ erred by failing to develop the record

when presented with the apparent discrepancy.

4 The petition for review is GRANTED in part and DENIED in part, and the

matter is REMANDED to the BIA. The parties shall bear their own costs.