Ludwig Gomez Hernandez v. Merrick Garland ( 2021 )


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  •                               NOT FOR PUBLICATION                        FILED
    UNITED STATES COURT OF APPEALS                        JUN 17 2021
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    LUDWIG ANTONIO GOMEZ                            No.   20-71417
    HERNANDEZ, AKA Ludwin Antonio
    Hernandez,                                      Agency No. A042-245-175
    Petitioner,
    MEMORANDUM*
    v.
    MERRICK B. GARLAND, Attorney
    General,
    Respondent.
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    Submitted June 10, 2021**
    Pasadena, California
    Before: MURGUIA and BADE, Circuit Judges, and MOLLOY,*** District Judge.
    Ludwin Gomez Hernandez, a native and citizen of El Salvador, petitions for
    *
    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 Donald W. Molloy, United States District Judge for the
    District of Montana, sitting by designation.
    review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
    from an immigration judge’s (“IJ”) denial of his motion for a fourth continuance.1
    Because the parties are familiar with the facts, we do not recite them here. We
    review the agency’s denial of a continuance for abuse of discretion. Ahmed v.
    Holder, 
    569 F.3d 1009
    , 1012 (9th Cir. 2009). We deny the petition for review.
    1.     The government argues that we lack jurisdiction over Gomez’s petition
    because the Supreme Court’s recent decision in Nasrallah v. Barr, 
    140 S. Ct. 1683
    (2020), effectively overruled longstanding Ninth Circuit precedent explaining that
    the jurisdictional bar of § 1252(a)(2)(C) “does not sweep in all petitions for review
    filed by petitioners with a qualifying conviction in their past,” Garcia v. Lynch, 
    798 F.3d 876
    , 880 (9th Cir. 2015) (internal quotations, alterations, and citation omitted),
    and holding that § 1252(a)(2)(C) does not deprive us of jurisdiction over “a
    procedural motion that rests on a ground independent of the conviction that triggers
    the bar,” id. at 881. But in Nasrallah the Court answered only the “narrow question”
    of whether an appellate court may review a noncitizen’s factual challenges to an
    agency’s order denying relief under the Convention Against Torture (“CAT”), and
    it did not consider or decide how §§ 1252(a)(2)(C) and (D) apply to motions for
    continuances. See 140 S. Ct. at 1688. Because Nasrallah addresses a different
    1
    The record offers various versions of Gomez’s first name, including “Ludwig,”
    “Ludwing,” and “Ludwin.”
    2
    situation than the one at issue here, it is not “clearly irreconcilable” with Garcia and
    we maintain jurisdiction over the petition. See Miller v. Gammie, 
    335 F.3d 889
    , 900
    (9th Cir. 2003) (en banc) (explaining that the Supreme Court’s authority must
    “undercut the theory or reasoning underlying the prior circuit precedent in such a
    way that the cases are clearly irreconcilable”).
    2.     Gomez argues that the agency abused its discretion in denying his
    motion for a fourth continuance. An IJ “may grant a motion for continuance for
    good cause shown.” 
    8 C.F.R. § 1003.29
    ; see Matter of L-A-B-R, 
    27 I. & N. Dec. 405
    , 407 (A.G. 2018). An IJ’s decision to grant or deny a motion for a continuance
    is within “the sound discretion of the judge and will not be overturned except on a
    showing of clear abuse.” Sandoval-Luna v. Mukasey, 
    526 F.3d 1243
    , 1247 (9th Cir.
    2008) (citation omitted).
    Gomez contends that the agency erred here because he could have eventually
    received adjustment of status from a family-based petition if he were granted a fourth
    continuance. Gomez, however, offered no evidence of any family-based petition on
    appeal before the BIA. See Matter of L-A-B-R, 27 I. & N. Dec. at 418 (explaining
    that absent evidence from a noncitizen’s relevant collateral proceeding, a noncitizen
    “generally will not carry his burden of showing that a collateral matter is actually
    likely to bear on the outcome of the removal proceedings”). Gomez also contends
    that he could have sought multiple forms of relief in light of changed country
    3
    conditions in El Salvador. Yet Gomez neither identified the purported changed
    country conditions nor provided evidence supporting any changed country
    conditions in El Salvador on appeal before the BIA.
    Accordingly, the agency did not abuse its discretion in concluding that Gomez
    suffered no prejudice from the IJ denying his motion for a fourth continuance. See
    Sandoval-Luna, 
    526 F.3d at 1245, 1247
    ; Matter of L-A-B-R, 27 I. & N. Dec. at 413–
    18.
    PETITION DENIED.2
    2
    Gomez’s motion for a stay of removal (Doc. 1) is denied as moot.
    4
    

Document Info

Docket Number: 20-71417

Filed Date: 6/17/2021

Precedential Status: Non-Precedential

Modified Date: 6/17/2021