Ramon Moreno Hurtado v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 17, 2021
• Docket: 16-72075
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 17 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

RAMON MORENO HURTADO, AKA No. 16-72075 Daniel R. Flores, AKA Rodriguez Daniel Flores, AKA Jonathan Magana, AKA Agency No. A205-719-456 Ramon Moreno, AKA Daniel Rodriguez, AKA Daniel Flores Rodriguez, MEMORANDUM* Petitioner,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted September 14, 2021**

Before: PAEZ, NGUYEN, and OWENS, Circuit Judges.

Ramon Moreno Hurtado, a native and citizen of Mexico, petitions for review

of the Board of Immigration Appeals’ order dismissing his appeal from an

* 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). immigration judge’s decision denying his motion for a continuance and his

application for cancellation of removal. We have jurisdiction under 8 U.S.C.

§ 1252. We review for abuse of discretion the denial of a continuance and review

de novo questions of law. Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009).

We deny the petition for review.

The agency did not abuse its discretion or violate Moreno Hurtado’s right to

due process in denying Moreno Hurtado’s motion for a continuance, where there

was no evidence of mental incompetency, and where Moreno Hurtado failed to

obtain relevant conviction documents prior to his hearing despite being on notice

for over eight months that the documents were required, and Moreno Hurtado

provided no explanation for not obtaining them. See id. at 1012 (listing factors the

court considers when reviewing the denial of a continuance); Lata v. INS, 204 F.3d

1241, 1246 (9th Cir. 2000) (requiring error to prevail on a due process claim).

The agency did not err in determining that Moreno Hurtado failed to

establish that his conviction under California Health & Safety Code § 11350(a) is

not a controlled substance violation that renders him ineligible for cancellation of

removal. See 8 U.S.C. §§ 1182(a)(2)(A)(i)(II), 1229b(b)(1)(C); Pereida v.

Wilkinson, 141 S. Ct. 754, 766 (2021) (an inconclusive conviction record is

insufficient to meet applicant’s burden of proof to show eligibility for relief); Lazo

v. Wilkinson, 989 F.3d 705, 714 (9th Cir. 2021) (holding California Health &

2 16-72075 Safety Code § 11350 is divisible with regard to substance).

Moreno Hurtado’s request for oral argument, raised in his opening brief, is

denied.

The temporary stay of removal remains in place until issuance of the

mandate.

PETITION FOR REVIEW DENIED.

3 16-72075