Ludwig Gomez Hernandez v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 17, 2021
• Docket: 20-71417
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 17 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

LUDWIG ANTONIO GOMEZ No. 20-71417 HERNANDEZ, AKA Ludwin Antonio Hernandez, Agency No. A042-245-175

Petitioner, MEMORANDUM* v.

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted June 10, 2021** Pasadena, California

Before: MURGUIA and BADE, Circuit Judges, and MOLLOY,*** District Judge.

Ludwin Gomez Hernandez, a native and citizen of El Salvador, petitions for

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

from an immigration judge’s (“IJ”) denial of his motion for a fourth continuance.1

Because the parties are familiar with the facts, we do not recite them here. We

review the agency’s denial of a continuance for abuse of discretion. Ahmed v.

Holder, 569 F.3d 1009, 1012 (9th Cir. 2009). We deny the petition for review.

1. The government argues that we lack jurisdiction over Gomez’s petition

because the Supreme Court’s recent decision in Nasrallah v. Barr, 140 S. Ct. 1683

(2020), effectively overruled longstanding Ninth Circuit precedent explaining that

the jurisdictional bar of § 1252(a)(2)(C) “does not sweep in all petitions for review

filed by petitioners with a qualifying conviction in their past,” Garcia v. Lynch, 798

F.3d 876, 880 (9th Cir. 2015) (internal quotations, alterations, and citation omitted),

and holding that § 1252(a)(2)(C) does not deprive us of jurisdiction over “a

procedural motion that rests on a ground independent of the conviction that triggers

the bar,” id. at 881. But in Nasrallah the Court answered only the “narrow question”

of whether an appellate court may review a noncitizen’s factual challenges to an

agency’s order denying relief under the Convention Against Torture (“CAT”), and

it did not consider or decide how §§ 1252(a)(2)(C) and (D) apply to motions for

continuances. See 140 S. Ct. at 1688. Because Nasrallah addresses a different

1 The record offers various versions of Gomez’s first name, including “Ludwig,” “Ludwing,” and “Ludwin.”

2 situation than the one at issue here, it is not “clearly irreconcilable” with Garcia and

we maintain jurisdiction over the petition. See Miller v. Gammie, 335 F.3d 889, 900

(9th Cir. 2003) (en banc) (explaining that the Supreme Court’s authority must

“undercut the theory or reasoning underlying the prior circuit precedent in such a

way that the cases are clearly irreconcilable”).

2. Gomez argues that the agency abused its discretion in denying his

motion for a fourth continuance. An IJ “may grant a motion for continuance for

good cause shown.” 8 C.F.R. § 1003.29; see Matter of L-A-B-R, 27 I. & N. Dec.

405, 407 (A.G. 2018). An IJ’s decision to grant or deny a motion for a continuance

is within “the sound discretion of the judge and will not be overturned except on a

showing of clear abuse.” Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1247 (9th Cir.

2008) (citation omitted).

Gomez contends that the agency erred here because he could have eventually

received adjustment of status from a family-based petition if he were granted a fourth

continuance. Gomez, however, offered no evidence of any family-based petition on

appeal before the BIA. See Matter of L-A-B-R, 27 I. & N. Dec. at 418 (explaining

that absent evidence from a noncitizen’s relevant collateral proceeding, a noncitizen

“generally will not carry his burden of showing that a collateral matter is actually

likely to bear on the outcome of the removal proceedings”). Gomez also contends

that he could have sought multiple forms of relief in light of changed country

3 conditions in El Salvador. Yet Gomez neither identified the purported changed

country conditions nor provided evidence supporting any changed country

conditions in El Salvador on appeal before the BIA.

Accordingly, the agency did not abuse its discretion in concluding that Gomez

suffered no prejudice from the IJ denying his motion for a fourth continuance. See

Sandoval-Luna, 526 F.3d at 1245, 1247; Matter of L-A-B-R, 27 I. & N. Dec. at 413–

18.

PETITION DENIED.2

2 Gomez’s motion for a stay of removal (Doc. 1) is denied as moot.