SERGIO ARRIETA V. MERRICK GARLAND

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 28, 2022
• Docket: 20-71420
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 28 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

SERGIO ARRIETA VELA, No. 20-71420

Petitioner, Agency No. A206-909-904

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

Respondent.

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

Submitted December 5, 2022** Pasadena, California

Before: KELLY,*** IKUTA, and CHRISTEN, Circuit Judges.

Sergio Arrieta Vela petitions for review of a Board of Immigration Appeals

(BIA) order dismissing his appeal of an immigration judge’s (IJ) decision denying

* 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 Paul J. Kelly, Jr., United States Circuit Judge for the U.S. Court of Appeals for the Tenth Circuit, sitting by designation. his motion to continue proceedings and his application for cancellation of removal.

Our jurisdiction is governed by 8 U.S.C. § 1252.

The BIA did not err in upholding the IJ’s discretionary denial of Petitioner’s

motion to continue as Petitioner did not meet his burden to show “good cause” to

delay the filing deadline under the relevant regulations. See 8 C.F.R. § 1003.29.

Petitioner waited until the day of the merits hearing to request additional time and

could not offer a persuasive rationale explaining why he could not have obtained

the requisite documentation in the preceding months, let alone provide the court

notice, before the hearing date. AR 83; Matter of Sibrun, 18 I. & N. Dec. 354,

356–57 (BIA 1983). Likewise, the record fails to demonstrate a conceivable

benefit to awaiting further resolution of Petitioner’s criminal case in state court.

See AR 130; Matter of L-A-B-R-, 27 I. & N. Dec. 405, 413, 419 (A.G. 2018).

Petitioner’s due process claim fails for a similar reason. Petitioner cannot show

that the IJ’s denial of a continuance resulted in prejudice because even if his

pending criminal charges were eventually dropped and the 2017 I-213 was

excluded as a result, other evidence in the record was sufficient to support the

charge of removability. See AR 130, 197–98; INS v. Lopez-Mendoza, 468 US.

1032, 1043 (1984) (“[R]egardless of how the arrest is effected, deportation will

still be possible when evidence not derived directly from the arrest is sufficient to

support deportation.”).

2 We lack jurisdiction to review the agency’s dispositive judgment that

Petitioner failed to demonstrate his daughter would face “exceptional and

extremely unusual hardship” upon his removal. 8 U.S.C. § 1229b(b)(1)(D). Our

caselaw dictating this result has long coexisted with the principle that “questions of

law,” reviewable under 8 U.S.C. § 1252 (a)(2)(D), “extend[] to questions involving

the application of [a legal standard] to undisputed facts,” Ramadan v. Gonzales,

479 F.3d 646, 650 (9th Cir. 2007), as recently articulated by the Supreme Court in

Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1067 (2020). See Romero-Torres v.

Ashcroft, 327 F.3d 887, 891 (9th Cir. 2003) (“whether an alien has demonstrated

the requisite hardship” is a discretionary question outside our purview).

Petitioner’s claim that the IJ misapplied the legal standard is a de facto abuse of

discretion argument cast as a question of law and does not persuade that we have

jurisdiction over the agency’s determination that the facts did not demonstrate a

potential for hardship beyond that which would ordinarily result from the removal

of a parent. See 8 U.S.C. § 1252(a)(2)(B)(i).

Although the agency’s order could be upheld on that ground alone,

Petitioner’s claim that Pereira v. Sessions, 138 S. Ct. 2105 (2018), and Niz-Chavez

v. Garland, 141 S. Ct. 1474 (2021), invalidate the IJ’s good moral character

determination for lack of an effective Notice to Appear also fails as a matter of

law. Pereira and Niz-Chavez involved the parameters of the 10-year period

3 relevant to the continuous presence requirement under 8 U.S.C. § 1229b(b)(1)(A).

Petitioner contends that the rationale of these cases applies equally to the 10-year

period relevant to the good moral character determination, but a close reading of

the caselaw reveals otherwise. Though 8 U.S.C. § 1229b indicates a textual

relation between provisions (b)(1)(A) (continuous presence) and (b)(1)(B) (good

moral character), this court has approvingly cited the BIA’s decision, In re Ortega-

Cabrera, 23 I. & N. Dec. 793 (BIA 2005), for the proposition that the 10-year

period for good moral character is not coextensive with the continuous presence

period and is measured backward from the date of final adjudication. See Castillo-

Cruz v. Holder, 581 F.3d 1154, 1162 (9th Cir. 2009) (citing In re Ortega-Cabrera,

23 I. & N. Dec. at 797). Thus, although some tension may exist, Pereira and Niz-

Chavez are not irreconcilable with In re Ortega-Cabrera and our circuit precedent

in Castillo-Cruz because they do not expressly address the period pertaining to

good moral character. Under Patel v. Garland, 142 S. Ct. 1614, 1619 (2022), our

review is limited to this legal question, and we deny the petition on this alternative

basis as well.

All pending motions are denied.

PETITION FOR REVIEW DISMISSED in part; DENIED in part.