NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 11 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
OSIEL FLORES, AKA Osiel Flores- No. 20-72270 Calderon, Agency No. A096-856-175 Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted August 2, 2022 Pasadena, California
Before: CALLAHAN and H. THOMAS, Circuit Judges, and HUMETEWA,** District Judge. Dissent by Judge H. THOMAS
Osiel Flores filed a petition for review of the Board of Immigration Appeals
(BIA) denial of cancellation of removal. He raises two arguments: (1) the
immigration judge (IJ) abused its discretion in denying his request for a
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Diane J. Humetewa, United States District Judge for the District of Arizona, sitting by designation. continuance and finding his application for relief abandoned; and (2) the BIA
abused its discretion by denying his motion to remand and failing to address
arguments therein. The denial of a continuance motion is reviewed for abuse of
discretion. Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009). We find the
agency did not abuse its discretion and deny the petition for review.
1. Flores first argues that the IJ abused its discretion in denying his
request for a continuance and finding his application for relief abandoned because
the IJ did not consider the relevant legal factors in its decision.
If an application for relief is not timely filed, it may be deemed
abandoned. 8 C.F.R. § 1003.31(c). In evaluating a request for continuance, the
agency must consider four factors known as the Cui factors: (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. Qi Cui v. Mukasey, 538 F.3d
1289, 1292 (9th Cir. 2008). An IJ’s failure to state a reasoned basis for the decision
not to grant a continuance may constitute an abuse of discretion. Ahmed, 569 F.3d
at 1014.
All four Cui factors were considered by the IJ, though not all were
explicitly discussed in the IJ’s written decision. First, the IJ did assess the nature of
the evidence excluded to the degree he could. The IJ explained that he normally
2 grants such motions if properly presented. However, Flores failed to identify what
documents he was waiting for, what efforts he made to get them, and why he had
been unable to get them. The record thus reflects the first Cui factor—the “nature
of the evidence excluded” (or lack thereof, in this case)—was considered.
Second, the IJ considered the reasonableness of Flores’ conduct. The IJ
stated the “most important[]” reason for denying a continuance was that Flores had
not explained why he did not file the documents he had available by the original
deadline and later seek-leave to supplement the application with additional
documents. The IJ noted that Flores failed to file his application on time, submitted
a barebones motion to continue that was bereft of any detail on the day his
application was due, and offered no explanation about the documents he needed
additional time for.
Third, the IJ did consider the inconvenience to the court, albeit implicitly.
The IJ had already granted a motion for continuance, reset a merit-hearing due to
absent counsel, sternly warned Flores to file his application by July 21, 2028, and
stated the possible consequences for failing to do so. The record also reflects that
the IJ continued the matter several times due to Flores’ attorney’s unavailability.
As of August 20, 2018, Flores failed to file his application for relief. The IJ has an
independent duty “[i]n all cases . . . to resolve the questions before them in a timely
and impartial manner.” 8 CFR § 1003.10(b). Further delaying the case imposes an
3 inconvenience on the immigration courts.
Lastly, the IJ was required to consider the number of continuances
previously granted. In this case, the IJ granted (1) a motion for continuance and (2)
a motion to extend the filing deadline. The IJ was not required to grant a second
motion and the denial of a continuance is within the sound discretion of the IJ. Qi
Cui, 538 F.3d at 1292. On this record, we cannot find that the IJ abused its
discretion in denying Flores’ request for a continuance.
2. Flores next argues that the BIA abused its discretion in denying his
motion to remand and failing to address arguments therein.
Under the BIA’s precedent, “an Immigration Judge’s decision denying [a]
motion for continuance will not be reversed unless the alien establishes that the
denial caused him actual prejudice or harm and materially affected the outcome of
his case. Matter of Villarreal, 23 I. & N. Dec. 886, 891 (B.I.A. 2006). Further,
“[t]he board has long held that applications for benefits under the Act are properly
denied as abandoned when the alien fails to timely file them.” Matter of R-R-, 20 I.
& N. Dec. 547 (B.I.A. 1992).
The BIA applied the four Cui factors to Flores’ case and in a well-reasoned
decision reached the same conclusion as the IJ. Even on appeal, Flores failed to
identify why he was unable to comply with the filing deadline. Therefore, the BIA
did not abuse its discretion in denying the motion to remand because it considered
4 the four Cui factors and stated a reasoned basis for denying the motion.
For the reasons above, the petition for review is DENIED. The temporary
stay of removal remains in place until issuance of the mandate. The motion for a
stay of removal is otherwise DENIED as moot.
5 FILED Flores v. Garland, 20-72270 AUG 11 2022 MOLLY C. DWYER, CLERK H. THOMAS, Circuit Judge, dissenting: U.S. COURT OF APPEALS
Immigration judges (IJs) must consider at least four factors, known as the
Cui factors, when evaluating a request for a continuance: (1) the nature of the
evidence excluded as a result of the denial of a continuance, (2) the reasonableness
of the immigrant’s conduct, (3) the inconvenience to the court, and (4) the number
of continuances previously granted. Owino v. Holder, 771 F.3d 527, 532 (9th Cir.
2014); see Cui v. Mukasey, 538 F.3d 1289, 1292 (9th Cir. 2008). This requirement
is not a mere formality. It balances the need for timely resolution of the matters
before the immigration courts with immigrants’ interests in fully presenting their
cases. See Cui, 538 F.3d at 1292. It also protects the equities that may be put at risk
by a too-narrow focus on expedient case resolution. So important is this framework
that we have held that the “fail[ure] to analyze all of the Cui factors” is alone an
abuse of discretion. Pleitez-Lopez v. Barr, 935 F.3d 716
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 11 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
OSIEL FLORES, AKA Osiel Flores- No. 20-72270 Calderon, Agency No. A096-856-175 Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted August 2, 2022 Pasadena, California
Before: CALLAHAN and H. THOMAS, Circuit Judges, and HUMETEWA,** District Judge. Dissent by Judge H. THOMAS
Osiel Flores filed a petition for review of the Board of Immigration Appeals
(BIA) denial of cancellation of removal. He raises two arguments: (1) the
immigration judge (IJ) abused its discretion in denying his request for a
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Diane J. Humetewa, United States District Judge for the District of Arizona, sitting by designation. continuance and finding his application for relief abandoned; and (2) the BIA
abused its discretion by denying his motion to remand and failing to address
arguments therein. The denial of a continuance motion is reviewed for abuse of
discretion. Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009). We find the
agency did not abuse its discretion and deny the petition for review.
1. Flores first argues that the IJ abused its discretion in denying his
request for a continuance and finding his application for relief abandoned because
the IJ did not consider the relevant legal factors in its decision.
If an application for relief is not timely filed, it may be deemed
abandoned. 8 C.F.R. § 1003.31(c). In evaluating a request for continuance, the
agency must consider four factors known as the Cui factors: (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. Qi Cui v. Mukasey, 538 F.3d
1289, 1292 (9th Cir. 2008). An IJ’s failure to state a reasoned basis for the decision
not to grant a continuance may constitute an abuse of discretion. Ahmed, 569 F.3d
at 1014.
All four Cui factors were considered by the IJ, though not all were
explicitly discussed in the IJ’s written decision. First, the IJ did assess the nature of
the evidence excluded to the degree he could. The IJ explained that he normally
2 grants such motions if properly presented. However, Flores failed to identify what
documents he was waiting for, what efforts he made to get them, and why he had
been unable to get them. The record thus reflects the first Cui factor—the “nature
of the evidence excluded” (or lack thereof, in this case)—was considered.
Second, the IJ considered the reasonableness of Flores’ conduct. The IJ
stated the “most important[]” reason for denying a continuance was that Flores had
not explained why he did not file the documents he had available by the original
deadline and later seek-leave to supplement the application with additional
documents. The IJ noted that Flores failed to file his application on time, submitted
a barebones motion to continue that was bereft of any detail on the day his
application was due, and offered no explanation about the documents he needed
additional time for.
Third, the IJ did consider the inconvenience to the court, albeit implicitly.
The IJ had already granted a motion for continuance, reset a merit-hearing due to
absent counsel, sternly warned Flores to file his application by July 21, 2028, and
stated the possible consequences for failing to do so. The record also reflects that
the IJ continued the matter several times due to Flores’ attorney’s unavailability.
As of August 20, 2018, Flores failed to file his application for relief. The IJ has an
independent duty “[i]n all cases . . . to resolve the questions before them in a timely
and impartial manner.” 8 CFR § 1003.10(b). Further delaying the case imposes an
3 inconvenience on the immigration courts.
Lastly, the IJ was required to consider the number of continuances
previously granted. In this case, the IJ granted (1) a motion for continuance and (2)
a motion to extend the filing deadline. The IJ was not required to grant a second
motion and the denial of a continuance is within the sound discretion of the IJ. Qi
Cui, 538 F.3d at 1292. On this record, we cannot find that the IJ abused its
discretion in denying Flores’ request for a continuance.
2. Flores next argues that the BIA abused its discretion in denying his
motion to remand and failing to address arguments therein.
Under the BIA’s precedent, “an Immigration Judge’s decision denying [a]
motion for continuance will not be reversed unless the alien establishes that the
denial caused him actual prejudice or harm and materially affected the outcome of
his case. Matter of Villarreal, 23 I. & N. Dec. 886, 891 (B.I.A. 2006). Further,
“[t]he board has long held that applications for benefits under the Act are properly
denied as abandoned when the alien fails to timely file them.” Matter of R-R-, 20 I.
& N. Dec. 547 (B.I.A. 1992).
The BIA applied the four Cui factors to Flores’ case and in a well-reasoned
decision reached the same conclusion as the IJ. Even on appeal, Flores failed to
identify why he was unable to comply with the filing deadline. Therefore, the BIA
did not abuse its discretion in denying the motion to remand because it considered
4 the four Cui factors and stated a reasoned basis for denying the motion.
For the reasons above, the petition for review is DENIED. The temporary
stay of removal remains in place until issuance of the mandate. The motion for a
stay of removal is otherwise DENIED as moot.
5 FILED Flores v. Garland, 20-72270 AUG 11 2022 MOLLY C. DWYER, CLERK H. THOMAS, Circuit Judge, dissenting: U.S. COURT OF APPEALS
Immigration judges (IJs) must consider at least four factors, known as the
Cui factors, when evaluating a request for a continuance: (1) the nature of the
evidence excluded as a result of the denial of a continuance, (2) the reasonableness
of the immigrant’s conduct, (3) the inconvenience to the court, and (4) the number
of continuances previously granted. Owino v. Holder, 771 F.3d 527, 532 (9th Cir.
2014); see Cui v. Mukasey, 538 F.3d 1289, 1292 (9th Cir. 2008). This requirement
is not a mere formality. It balances the need for timely resolution of the matters
before the immigration courts with immigrants’ interests in fully presenting their
cases. See Cui, 538 F.3d at 1292. It also protects the equities that may be put at risk
by a too-narrow focus on expedient case resolution. So important is this framework
that we have held that the “fail[ure] to analyze all of the Cui factors” is alone an
abuse of discretion. Pleitez-Lopez v. Barr, 935 F.3d 716, 719 (9th Cir. 2019).
In denying Flores’s request for a continuance and determining that he had
abandoned his case, the IJ considered only one issue: whether Flores’s counsel had
adequately explained why a continuance was required. The IJ did not address any
Cui factors beyond reasonableness, even though several of them might have
favored a continuance. Under our precedents, the result is clear: this was an abuse
of discretion that requires remand under Cui.
1 The majority does not dispute that the IJ did not “explicitly” address all four
Cui factors. See Maj. at 2. It nevertheless concludes that the IJ “implicitly”
considered each of them. I respectfully disagree with my colleagues on this point.
While the reasons given by the majority might have supported the denial of a
continuance, nothing in the record suggests that the IJ performed the analysis that
the majority has performed here. And, indeed, had the IJ expressly considered each
of the Cui factors, he could reasonably have concluded that the equities weighed in
favor of a continuance. This was Flores’s first request for a continuance of the
deadline for filing his application for relief.1 The Government did not oppose a
continuance. The continued date would have been nearly four months before the
next scheduled hearing in Flores’ case. Perhaps most significantly, the IJ himself
acknowledged that he would ordinarily grant a continuance under these
circumstances.
I do not downplay the potential disruption that Flores’ request may have
caused the court. But the IJ did not discuss this. A careful examination of the IJ’s
order reveals no weighing of the difficulty a 30-day continuance might have
caused for the court against the severe consequences that might flow from the
1 The majority and the BIA err in characterizing Flores’s motion as his second request for a continuance of the deadline for filing his application for relief. It is clear from the record that the July 31, 2018, date that Flores sought to continue was the first deadline the IJ had imposed for filing the application, and thus this was the first request for a continuance of this deadline. 2 denial of the motion. See Cui, 538 F.3d at 1293 (holding that the equities favored a
continuance when denial of a continuance would “effectively pretermit[] any hope
. . . of obtaining relief”). This weighing is what Cui requires. I would remand for it
to be done.
I therefore respectfully dissent from the majority’s decision to deny the
petition for review.