Nora Lopez Lopez v. Merrick Garland

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 17 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

NORA LILIAM LOPEZ LOPEZ, No. 18-73467

Petitioner, Agency No. A203-078-639

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

Respondent.

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

Submitted March 13, 2023** Pasadena, California

Before: LEE, BRESS, and MENDOZA, Circuit Judges.

Nora Liliam Lopez Lopez (Lopez), a native and citizen of Colombia, petitions

for review of a Board of Immigration Appeals (BIA) decision dismissing her appeal

of an immigration judge (IJ) order denying her motion to continue proceedings and

ordering her removed to Colombia. We have jurisdiction under 8 U.S.C. § 1252 and

* 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). deny the petition.

“Where, as here, the BIA agrees with the IJ’s reasoning, we review both

decisions.” Garcia-Martinez v. Sessions, 886 F.3d 1291, 1293 (9th Cir. 2018). “An

IJ’s decision not to continue a hearing is reviewed for abuse of discretion . . . .”

Orozco-Lopez v. Garland, 11 F.4th 764, 774 (9th Cir. 2021) (quoting Arrey v. Barr,

916 F.3d 1149, 1158 (9th Cir. 2019)).

The BIA did not abuse its discretion in denying Lopez’s motion for a

continuance of her removal proceedings. In removal proceedings, IJs “may grant a

motion for continuance for good cause shown.” 8 C.F.R. § 1003.29. In determining

whether good cause supports a continuance, the IJ engages in a multifactor analysis,

principally focusing on “the likelihood that the collateral relief will be granted and

will materially affect the outcome of the removal proceedings.” Matter of L-A-B-R-,

27 I. & N. Dec. 405, 406 (A.G. 2018). “The decision to grant or deny the

continuance is within ‘the sound discretion of the judge and will not be overturned

except on a showing of clear abuse.’” Ahmed v. Holder, 569 F.3d 1009, 1012 (9th

Cir. 2009) (quoting Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1247 (9th Cir.

2008)).

The denial of Lopez’s motion to continue proceedings was not an abuse of

discretion. Lopez cites no authority indicating that the BIA was required to grant a

continuance pending a second I-751 petition after the denial of her first petition.

2 Given Lopez’s criminal history, her failure to attend or reschedule the interview in

connection with her initial I-751 petition, and her failure to file a motion to reopen

or reconsider the proceedings under that petition, the BIA did not commit “clear

abuse” by finding that any relief on Lopez’s second I-751 petition was speculative.

Nor did this denial constitute a denial of due process. See Grigoryan v. Barr, 959

F.3d 1233, 1240 (9th Cir. 2020) (noting that a petitioner “must show error and

substantial prejudice” to prevail on a due process challenge (quotation omitted)).

PETITION DENIED.