Nivardo Santiago-Sanchez v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 7, 2021
• Docket: 20-71905
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 7 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

NIVARDO SANTIAGO-SANCHEZ, No. 20-71905

Petitioner, Agency No. A216-073-834

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted September 2, 2021** Seattle, Washington

Before: McKEOWN and GOULD, Circuit Judges, and RAKOFF,*** District Judge.

Nivardo Santiago-Sanchez seeks review of the Board of Immigration

Appeals’ (“BIA”) dismissal of an immigration judge’s (“IJ”) denial of his request

* 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 Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. for a continuance. Except as to one of Santiago-Sanchez’s claims, we have

jurisdiction under 8 U.S.C. § 1252, and we deny the petition for review.

The IJ did not abuse its discretion in concluding that there was no good

cause to grant the continuance. The agency considered the reasonableness of

Santiago-Sanchez’s conduct and the fact that Santiago-Sanchez had been granted a

prior continuance. See Peng v. Holder, 673 F.3d 1248, 1253 (9th Cir. 2012)

(“[T]he IJ—and, on appeal, the BIA—should consider factors including (1) the

nature of the evidence excluded as a result of the denial of the continuance, (2) the

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

(4) the number of continuances previously granted.” (internal quotation marks

omitted)).

Nor did the IJ violate Santiago-Sanchez’s right to counsel in declining to

grant the continuance. “Absent a showing of clear abuse, we typically do not

disturb an IJ’s discretionary decision not to continue a hearing,” but in considering

whether a reasonable time was provided, we consider “the realistic time necessary

to obtain counsel; the time frame of the requests for counsel; the number of

continuances; any barriers that frustrated a petitioner’s efforts to obtain counsel,

such as being incarcerated or an inability to speak English; and whether the

petitioner appears to be delaying in bad faith.” Biwot v. Gonzales, 403 F.3d 1094,

1099 (9th Cir. 2005). Even assuming that Santiago-Sanchez did not knowingly

2 and voluntarily waive his right to counsel, the IJ did not violate Santiago-

Sanchez’s right to counsel in declining to grant a continuance, as Santiago-Sanchez

had seven months to seek counsel, during which time he was not detained. See

United States v. Moriel-Luna, 585 F.3d 1191, 1201–02 (9th Cir. 2009).

Finally, Santiago-Sanchez contends that the IJ violated his due process rights

by failing to sufficiently explain “what the relief was and what the procedures were

for requesting the relief.” We lack jurisdiction to review this claim because

Santiago-Sanchez did not exhaust it before the BIA, and the “BIA could have

addressed [Santiago-Sanchez’s] claim if [he] had raised it.” See Sola v. Holder,

720 F.3d 1134, 1135–36 (9th Cir. 2013) (per curiam). We dismiss the petition as

to that claim.

PETITION DENIED IN PART and DISMISSED IN PART.