Orquidia Hernandez-Garcia v. Robert Wilkinson

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 3, 2021
• Docket: 19-70030
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION MAR 3 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ORQUIDIA TAMARA HERNANDEZ- No. 19-70030 GARCIA, Agency No. A216-274-404 Petitioner,

v. MEMORANDUM*

ROBERT M. WILKINSON, Acting Attorney General,

Respondent.

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

Submitted March 1, 2021** Pasadena, California

Before: KLEINFELD, HIGGINSON,*** and OWENS, Circuit Judges.

* 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 Stephen A. Higginson, United States Circuit Judge for the U.S. Court of Appeals for the Fifth Circuit, sitting by designation. Orquidia Tamara Hernandez-Garcia claims she was denied a full and fair

hearing before the Immigration Judge because he interrupted her answers to

questions, he did not allow parties to make a closing argument, and he failed to

assist her in developing her case on the record. The Immigration Judge acted

appropriately. Far from harming Hernandez-Garcia, the Immigration Judge’s

questions and interjections were designed to help get to the root issues of her

claims. Therefore, the Immigration Judge was responsive to the particular

circumstances of the case, and Hernandez-Garcia’s due process rights were not

violated. See Hussain v. Rosen, 985 F.3d 634, 643–45 (9th Cir. 2021).

Hernandez-Garcia further argues that the Board erred in finding that she did

not establish good cause for a continuance in her case. The decision to grant a

continuance is generally within the sound discretion of the Immigration Judge. See

Gonzalez v. INS, 82 F.3d 903, 908 (9th Cir. 1996). The Immigration Judge was

well within his discretion to deny the continuance because Hernandez-Garcia had

previously been given a continuance, had several months to obtain counsel, and

had previously told the Immigration Judge that she had decided to proceed pro se

for her merits hearing. See Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009)

(noting relevant factors in evaluating a denial of a continuance include the

2 reasonableness of the immigrant’s conduct and the inconvenience to the court).

Hernandez-Garcia has not pointed to any factor weighing in favor of granting a

continuance. See id.

Next, Hernandez-Garcia claims that the Board erred in holding that her

social group, “family of my son,” was not cognizable. The record does not compel

a conclusion contrary to the Board’s determinations that Hernandez-Garcia failed

to show that her proposed social group had particularity and that the harm to her

was motivated by animus towards her proposed social group. See Reyes v. Lynch,

842 F.3d 1125, 1135 (9th Cir. 2016); Matter of L-E-A-, 27 I. & N. Dec. 40, 45

(B.I.A. 2017) (affirmed in part and overruled in part by Matter of L-E-A-, 27 I. &

N. Dec. 581 (2019)). Thus, her asylum and withholding of removal claims

necessarily fail.

Finally, substantial evidence supports the Board’s denial of relief under the

Convention Against Torture because Hernandez-Garcia has not shown that she was

the victim of past torture, or that she could not relocate within Guatemala. See 8

C.F.R. §§ 1208.16(c)(3), 1208.18(a)(1).

3 The petition for review is DENIED.