Juan Mendoza Birrueta v. Merrick Garland ( 2023 )

FILED
NOT FOR PUBLICATION
FEB 13 2023
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN GABRIEL MENDOZA No. 17-71971
BIRRUETA,
Agency No. A077-442-971
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 9, 2023**
Pasadena, California
Before: SCHROEDER, TALLMAN, and IKUTA, 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).
Juan Gabriel Mendoza Birrueta petitions for review of an order of the Board
of Immigration Appeals (BIA) affirming the decision of an Immigration Judge (IJ)
denying his request for a third continuance and pretermitting his application for
cancellation of removal. We have jurisdiction under 8 U.S.C. § 1252(a)(1). We
review for abuse of discretion the IJ’s denial of a continuance, Sandoval-Luna v.
Mukasey, 526 F.3d 1243, 1246 (9th Cir. 2008) (per curiam), and review de novo
constitutional claims and questions of law, Vargas-Hernandez v. Gonzales, 497
F.3d 919, 921 (9th Cir. 2007). We deny the petition for review.
The IJ did not abuse its discretion in denying Mendoza Birrueta’s request for
a third continuance so that he could seek post-conviction relief in state court
because Mendoza Birrueta failed to demonstrate “good cause” for a continuance. 8
C.F.R. § 1003.29 (2023). At the time of Mendoza Birrueta’s request for a third
continuance, collateral post-conviction relief remained purely speculative, and “the
IJ [is] not required to grant a continuance based on . . . speculations.” Singh v.
Holder, 638 F.3d 1264, 1274 (9th Cir. 2011); see also Garcia v. v. Lynch, 798 F.3d
876, 881 (9th Cir. 2015) (denying alien’s request for a continuance so that he could
“seek postconviction relief” where “the IJ had previously continued [his]
proceedings three times for various procedural reasons”).
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While we have identified certain factors that we consider “[w]hen reviewing
an IJ’s denial of a continuance,” Garcia, 798 F.3d at 881, the IJ need not address
any particular factors on the record as long as “the IJ sufficiently outlined why
good cause [for a continuance] did not exist,” Hui Ran Mu v. Barr, 936 F.3d 929,
936 (9th Cir. 2019), which the IJ did here. Because the IJ was not obligated to
continue Mendoza Birrueta’s removal proceedings so that he could pursue
speculative post-conviction relief, and because Mendoza Birrueta “does not have a
cognizable liberty interest in discretionary relief from removal,” Sandoval-Luna,
526 F.3d at 1247, the IJ’s refusal to grant a third continuance did not violate
Mendoza Birrueta’s due process rights.
The BIA did not err in pretermitting Mendoza Birrueta’s application for
cancellation of removal on the ground that he was ineligible for such relief. His
conviction for assault with a deadly weapon under Section 245(a)(1) of the
California Penal Code was categorically a crime involving moral turpitude (CIMT)
under 8 U.S.C. § 1182(a)(2)(A)(i)(I). See Safaryan v. Barr, 975 F.3d 976, 981 (9th
Cir. 2020). Mendoza-Birrueta forfeited any challenge to the BIA’s determination
that his conviction under Section 245(a)(1) was a CIMT by failing to challenge that
determination in his opening brief. See Perez-Camacho v. Garland, 54 F.4th 597,
602 n.2 (9th Cir. 2022). Under 8 U.S.C. § 1229b(b)(1)(C), an alien who is
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“convicted of [certain enumerated] offenses,” including a CIMT, 8 U.S.C.
§ 1182(a)(2)(A)(i)(I), is “ineligible for cancellation of removal,” Barton v. Barr,
140 S. Ct. 1442, 1452 (2020). Because Mendoza Birrueta’s eligibility for post-
conviction relief is speculative, we need not consider his argument that if he
received such relief, and his conviction were reduced to a misdemeanor, he would
qualify for the petty offense exception under 8 U.S.C. § 1182(a)(2)(A)(ii)(II).
An IJ’s denial of a request for a continuance is not a due process violation
where the petitioner cannot show “that he was prejudiced by the denial of a
continuance” because he was not eligible for any relief from removal. Sandoval-
Luna, 526 F.3d at 1247. Because Mendoza Birrueta was ineligible for cancellation
of removal, the only form of relief he sought, the IJ’s denial of his request for a
third continuance did not violate Mendoza Birrueta’s due process rights.
PETITION DENIED.
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