United States v. Miguel Moriel-Luna ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 08-50124
Plaintiff-Appellee,
D.C. No.
v.
 8:04-cr-00168-
MIGUEL MORIEL-LUNA, Miguel JVS-1
Sillas Moriel,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Argued and Submitted
August 31, 2009—Pasadena, California
Filed October 29, 2009
Before: Ronald M. Gould and Richard C. Tallman,
Circuit Judges, and Owen M. Panner, District Judge.*
Opinion by Judge Gould
*The Honorable Owen M. Panner, Senior District Judge for the District
of Oregon, sitting by designation.
14623
14626 UNITED STATES v. MORIEL-LUNA
COUNSEL
Jonathan D. Libby (argued), Federal Public Defender’s
Office, Los Angeles, California, for the plaintiff-appellee.
UNITED STATES v. MORIEL-LUNA 14627
Douglas F. McCormick (argued), Office of the U.S. Attorney,
Santa Ana, California, and Michael J. Raphael, Office of the
U.S. Attorney, Los Angeles, California, for the defen-
dant-appellant.
OPINION
GOULD, Circuit Judge:
Miguel Moriel-Luna (“Moriel”) appeals the district court’s
denial of his motion to dismiss his indictment for illegal reen-
try into the United States by a deported alien in violation of
8 U.S.C. § 1326. On an earlier appeal, we reversed the district
court by concluding that the Immigration Judge (“IJ”) at Mor-
iel’s deportation hearing should have informed Moriel of pos-
sible relief under sections 212(c) and 212(h) of the
Immigration and Nationality Act (INA). We remanded to the
district court to determine whether the government could
show that the IJ’s error did not cause prejudice. On remand,
the district court concluded that there was no prejudice
because a visa was not immediately available to Moriel, a pre-
requisite to receiving such relief. The district court also
rejected Moriel’s new arguments that he could obtain section
212(c) relief without an immediately available visa and that
the government denied his right to counsel at his deportation
hearing. We affirm.
I
Moriel is a Mexican citizen who entered the United States
with his parents as a permanent resident in 1985 at the age of
twelve. In 1992, Moriel pleaded guilty to assault with a fire-
arm, in violation of California Penal Code section 245(a)(2),
after he fired several gunshots at two occupants of a car and
continued shooting at them as they fled on foot. Moriel served
thirty-two months of a five-year sentence.
14628 UNITED STATES v. MORIEL-LUNA
Upon Moriel’s release from prison in 1994, the government
initiated deportation proceedings against him. The govern-
ment alleged that Moriel was deportable because his convic-
tion involved the use of a firearm, see 8 U.S.C.
§ 1251(a)(2)(C) (1995),1 and was an aggravated felony, see 8
U.S.C. § 1251(a)(2)(A)(iii).
An attorney entered an appearance for Moriel in October
1994, but at his April 1995 hearing Moriel appeared without
counsel. Moriel told the IJ that he spoke English, and the IJ
conducted the hearing without a translator. The IJ told Moriel
that he had a right to be represented by counsel and gave him
a list of legal-services organizations. Moriel asked for time to
find an attorney, and the IJ granted a one-week continuance.
The IJ warned Moriel, however, that if he returned without an
attorney he would not again continue the case and would
assume that Moriel would proceed pro se. When the hearing
resumed, Moriel said that he did not have an attorney, and he
answered, “Yes,” when the IJ asked him if would speak for
himself that day. Moriel did not at this hearing ask for more
time to find an attorney or indicate that he made an effort to
obtain one.
When the IJ explained to Moriel his possible eligibility for
relief, Moriel told the IJ that his parents were legal residents
but not U.S. citizens. Moriel also told the IJ that he was single
and did not mention that he had a girlfriend. The IJ ordered
Moriel deported for having committed a crime involving the
use of a firearm and an aggravated felony, and he made an
additional oral finding that Moriel committed a crime involv-
ing moral turpitude.
About eight months after his deportation hearing, Moriel
married a U.S. citizen, and as of 2004 the couple was still
married and had three children. According to a written decla-
1
Unless otherwise indicated, citations to statutes refer to the versions in
effect during Moriel’s 1995 deportation proceeding.
UNITED STATES v. MORIEL-LUNA 14629
ration by Moriel’s wife, the two met in the fall of 1994 and
became engaged “soon after.” Moriel’s wife said that she and
Moriel “would have definitely been married a few months
earlier if we had been properly advised of the impact upon my
husband’s immigration status in this country.”
After his deportation, Moriel illegally reentered the United
States on many occasions. Moriel illegally reentered the
United States in July 1995 and was arrested for possession of
drug paraphernalia in January 2001. The government rein-
stated his 1995 deportation order and deported him on Janu-
ary 9, 2001. Immigration officials discovered Moriel in the
United States on July 26, 2001, after his arrest for domestic
violence. The government charged Moriel with violating 8
U.S.C. § 1326, which prohibits the unauthorized reentry of a
removed alien. Moriel pleaded guilty and was sentenced to
thirty months in prison. Following his release from custody in
2003, immigration authorities reinstated Moriel’s 1995 depor-
tation order and deported him. Moriel once again illegally
reentered the United States, and immigration officials found
him once again in July 2004. The government then charged
Moriel with violating 8 U.S.C. § 1326.
All of this sounds a bit like a repeating refrain, as if Moriel
was in a revolving door and continuously left the United
States via deportation only very shortly thereafter to return
illegally. However, something new was added in this case.
This time Moriel challenged his underlying 1995 deportation
order and filed a motion to dismiss the government’s indict-
ment on the ground that the IJ violated his due-process rights
by not informing him of the opportunity to seek discretionary
relief under sections 212(c) and 212(h) of the INA. The dis-
trict court denied Moriel’s motion. Moriel then pleaded guilty,
reserving his right to appeal the district court’s decision. Mor-
iel received a seventy-month sentence for his illegal reentry.
In an unpublished disposition, we reversed the district
court. United States v. Moriel-Luna, 244 F. App’x 810 (9th
14630 UNITED STATES v. MORIEL-LUNA
Cir. 2007). We concluded that the record “disclosed sufficient
information to infer that [Moriel] was eligible to petition for
adjustment of status under INA § 245(a) along with a petition
for waiver of deportation under either former INA § 212(c) or
INA § 212(h)” and that the IJ “incorrectly informed Moriel
that he was ineligible to apply for any relief from deporta-
tion.” Id. at 812. We further held that Moriel presented a
prima facie case of prejudice from the IJ’s error of not
informing him of section 212(c) relief and remanded so the
district court could “determine whether the government can
demonstrate that a visa was not immediately available, and
thus Moriel is not entitled to relief.” Id. at 813. Without an
immediately available visa, Moriel could not adjust his status
under section 245(a). Id.
On remand, and after a hearing to determine the facts, the
district court again denied Moriel’s motion to dismiss the
indictment, this time on the ground that the government had
proven any errors by the IJ did not cause prejudice because
there was no visa immediately available to Moriel at the time
of his deportation hearing. The district court concluded that a
visa would not have been available for Moriel unless he had
applied for one in 1990. The district court determined that
mere speculation that Moriel could have obtained a visa in the
future if he married his U.S.-citizen girlfriend or if his parents
later applied for citizenship did not show that a visa was “im-
mediately” available at the time of his deportation hearing.
The district court also entertained two arguments that Mor-
iel raised for the first time on remand: First, the district court
rejected Moriel’s argument that his state firearm-assault con-
viction did not establish a basis for deportation. Second, the
district court concluded that the IJ did not deny Moriel his
right to counsel by proceeding with the deportation hearing
after Moriel did not hire an attorney during the week-long
continuance.
Moriel timely appealed the district court’s denial on
remand of his motion to dismiss the § 1326 indictment. After
UNITED STATES v. MORIEL-LUNA 14631
considering the factual record and the dispositive legal princi-
ples, we affirm.
II
We review de novo the district court’s denial of a motion
to dismiss an 8 U.S.C. § 1326 indictment when the motion to
dismiss is based on alleged due-process defects in the under-
lying deportation proceeding. United States v. Ubaldo-
Figueroa, 364 F.3d 1042, 1047 (9th Cir. 2004). To prevail on
such a motion, Moriel must establish that defects in the depor-
tation proceeding violated his due-process rights and that he
suffered prejudice as a result of those defects. Id. at 1048.
Although Moriel need not conclusively demonstrate that he
would have received relief to show prejudice, he must show
that there were “plausible grounds for relief.” United States v.
Gonzalez-Valerio, 342 F.3d 1051, 1054 (9th Cir. 2003).
III
[1] As we previously held, at the 1995 deportation hearing
the IJ should have advised Moriel that he might have been eli-
gible for relief from deportation under the former section
212(c) of the INA, 8 U.S.C. § 1182(c). Section 212(c) granted
the Attorney General discretion to admit “[a]liens lawfully
admitted for permanent residence who temporarily proceed
abroad voluntarily and not under an order of deportation”
even if the aliens would otherwise be excluded under 8 U.S.C.
§ 1182(a). By its terms, section 212(c) offers waivers only
from a denial of admissibility, not from deportation. There-
fore, in order to be eligible for section 212(c) relief, Moriel
must also have applied for and received an adjustment of sta-
tus, converting his deportation hearing into an admissibility
hearing. Then, in an admissibility hearing, Moriel could have
filed a petition to immigrate, allowing him potential relief via
section 212(c). To adjust status, however, an alien must show
that “an immigrant visa is immediately available to him at the
time his application is filed.” 8 U.S.C. § 1255(a) (emphasis
14632 UNITED STATES v. MORIEL-LUNA
added); Hernandez v. Ashcroft, 345 F.3d 824, 843 (9th Cir.
2003) (“[I]n order for an applicant to be eligible for adjust-
ment of status, an immigrant visa must be immediately avail-
able at the time of filing.”).
The district court determined that under the applicable reg-
ulations limiting the number of immigrant visas available to
particular aliens, a visa would only have been available to
Moriel had he applied for one by March 1990, approximately
five years before his deportation hearing, which he had not
done. Moriel does not contest this part of the district court’s
decision. Instead, he argues that a visa could have been imme-
diately available to him had he married his U.S.-citizen girl-
friend or had one of his parents become a U.S. citizen during
the deportation hearing. See 8 U.S.C. § 1151(b)(2)(A)(i)
(exempting immediate relatives of U.S. citizens from numeri-
cal limits on visas). Moriel contends that the IJ should have
informed him of these potential paths to obtain a visa and
granted a continuance of the hearing until one of his parents
became or Moriel married a U.S. citizen. We disagree.
[2] Moriel’s argument is unpersuasive because he did not
make the IJ aware of the engagement with his girlfriend or of
the possibility that one of his parents might become a citizen.
The IJ was required to “inform the alien of his or her apparent
eligibility to apply” for section 212(c) relief. 8 C.F.R.
§ 242.17 (1995) (emphasis added); see also United States v.
Muro-Inclan, 249 F.3d 1180, 1183 (9th Cir. 2001). Yet
“[u]ntil the [alien] himself or some other person puts informa-
tion before the judge that makes such eligibility ‘apparent,’
this duty does not come into play.” Moran-Enriquez v. INS,
884 F.2d 420, 422 (9th Cir. 1989). We do not require IJs to
speculate about the possibility of anticipated changes of cir-
cumstances and advise aliens of facts not suggested in the
record. See id. (“IJs are not expected to be clairvoyant; the
record before them must fairly raise the issue . . . .”).
UNITED STATES v. MORIEL-LUNA 14633
[3] Upon direct questioning, Moriel told the IJ that he was
single. He mentioned neither his girlfriend nor any pending
engagement. He also told the IJ that his parents were not citi-
zens, and the record does not indicate that his parents applied
for naturalization or were even eligible to apply at the time of
the deportation hearing. This advice from Moriel to the IJ ren-
ders fatal his contention that he should have been advised of
potential changes that might have rendered a visa immediately
available. Neither the likelihood of a marriage of Moriel or
the likelihood of parental citizenship was apparent on the
record before the IJ, and the IJ was not required to inform
Moriel of these potential methods of making a visa immedi-
ately available to him.2 See Bui v. INS, 76 F.3d 268, 271 (9th
Cir. 1996) (“The regulations do not require the IJ to scour the
entire record or to interrogate an alien regarding all possible
avenues of relief.”). Stated another way, our precedent
requires that an IJ advise an immigrant of potential avenues
of relief that are apparent from the record before the IJ. How-
ever, our precedent does not require that an IJ act creatively
to advise an immigrant of ways in which his legal prospects
at forestalling deportation might improve with fundamental
changes in his status.
2
United States v. Lopez-Velasquez does not demand a different result.
568 F.3d 1139 (9th Cir. 2009). We held in Lopez-Velasquez that it is error
for an IJ to not inform an alien of potential section 212(c) relief where the
alien has not continuously resided in the United States for the requisite
seven years but would accrue enough time if he or she appealed the IJ’s
decision. Id. at 1145. We reasoned that where the record raises a reason-
able possibility that an alien may be eligible for relief, the IJ must so
advise. Id. at 1143. Here, Moriel did not make the IJ remotely aware of
his engagement or of his parents’ possible citizenship application, so the
record did not raise a reasonable possibility of relief in the event of an
appeal or continuance. Moreover, an appeal alone would have been
enough for the alien in Lopez-Velasquez to receive relief because he only
needed the additional time an appeal would provide. Id. at 1144-45. Mor-
iel, on the other hand, would have needed to take additional steps beyond
an appeal or continuance. He needed the fundamental circumstances of his
status to be changed; he needed not only time but also to either marry his
U.S.-citizen girlfriend or to have his parents successfully petition for citi-
zenship.
14634 UNITED STATES v. MORIEL-LUNA
As the district court stated, “Moriel-Luna cites no authority
for the proposition that the ‘immediately available’ require-
ment can be satisfied by the future possibility that an individ-
ual could take some action to place himself in a position such
that he would have a visa immediately available.” Nor does
Moriel cite any such cases on appeal.3 Instead, he relies on a
written declaration by an immigration lawyer who states that
IJs have regularly “granted a continuance of their deporta-
tion/removal hearing to allow the INS/CIS to process a rela-
tive’s naturalization application, which if granted, [would]
render the alien eligible for adjustment of status.” Yet even if
the statement is true, it refers only to filed applications await-
ing processing, not applications that have yet to be filed.
[4] Because a visa petition had neither been filed on behalf
of Moriel at the time of his hearing nor could have been filed
by either his girlfriend or his noncitizen parents, the govern-
ment has persuasively shown that a visa was not immediately
available. Without an immediately available visa, Moriel
could not have adjusted his status under section 245(a); there-
fore, Moriel could not obtain section 212(c) relief. The IJ’s
failure to inform Moriel of his section 212(c) options did not
prejudice him.4 See Ubaldo-Figueroa, 364 F.3d at 1047.
IV
Moriel also argues that he suffered prejudice when the IJ
3
Moriel cites Bull v. INS, 790 F.2d 869 (11th Cir. 1986), for the proposi-
tion that he could have married his girlfriend and immediately received a
visa. But in Bull, the alien married a U.S. citizen before the deportation
proceedings commenced. See id. at 869-70.
4
Because we conclude that there is no due-process violation where the
alien does not make the IJ aware of a pending engagement to a U.S. citi-
zen or the possibility of the alien’s parents later filing for citizenship, we
need not address a situation in which the alien does inform the IJ of a
pending engagement or possible future parental citizenship. We express no
opinion whether the scope of required advice from the IJ might have been
altered by either of these circumstances if presented.
UNITED STATES v. MORIEL-LUNA 14635
did not inform him of potential relief under INA § 212(h),
which grants the Attorney General discretion to waive admis-
sibility restrictions if exclusion of an alien “would result in
extreme hardship to the United States citizen or lawfully resi-
dent spouse, parent, son, or daughter of such alien.” 8 U.S.C.
§ 1182(h)(1)(B).
[5] Section 212(h), like section 212(c), is capable of waiv-
ing only a denial of admissibility, not deportation. Therefore,
Moriel needed to adjust his status to receive section 212(h)
relief. Moriel could not adjust his status because a visa was
not immediately available; consequently, he was ineligible for
section 212(h) relief.
Moriel submits that he did not have to adjust his status to
receive section 212(h) relief. He relies on In re Sanchez,
which held that an alien may obtain a section 212(h) waiver
nunc pro tunc to cure a ground for inadmissibility that exists
during a deportation hearing but did not exist at the time of
a previous entry into the United States. 17 I. & N. Dec. 218,
222 (BIA 1980). Moriel argues that had the IJ informed him
of possible 212(h) relief, he could have departed and reen-
tered the United States before his deportation order became
final and been eligible for a section 212(h) waiver without an
adjustment of status.
[6] Moriel’s argument is misplaced. If Moriel could have
been eligible for section 212(h) relief without an adjustment
of status by leaving and reentering the United States during
his deportation hearing, then he also would have been eligible
for section 212(c) relief by performing the same act. But by
remanding Moriel’s initial appeal on section 212(c) relief with
instructions to determine whether a visa was immediately
available, we implicitly rejected the possibility that Moriel
could receive section 212(c) relief without adjusting his sta-
tus. Moriel does not argue on this appeal that he is eligible for
section 212(c) relief for this reason, and he cites no case hold-
ing that the government prejudiced an alien when the IJ did
14636 UNITED STATES v. MORIEL-LUNA
not mention possible section 212(c) or 212(h) relief in a
deportation hearing merely because the alien could have left
and reentered but did not do so. The district court properly
concluded that Moriel was ineligible for section 212(h) relief,
absent an adjustment of status, because he never attempted to
leave and reenter the United States prior to the finalization of
the deportation order.5
V
For the first time on remand,6 Moriel further argued that he
was eligible for section 212(c) relief without an adjustment of
status because the government did not establish that his state
5
Even if Moriel did not need to adjust his status for section 212(h)
relief, the IJ’s decision not to inform him of the relief was not prejudicial.
Section 212(h) relief requires a finding that a relevant person would suffer
extreme hardship from the exclusion. 8 U.S.C. § 1182(h)(1)(B). Extreme
hardship “requires great actual or prospective injury or extreme impact on
the citizen family member, beyond the common results of deportation.”
Muro-Inclan, 249 F.3d at 1184. At the time of Moriel’s deportation, the
only persons relevant under the statute were Moriel’s parents. Yet the only
evidence of hardship to Moriel’s parents were each parent’s identical dec-
larations that “[t]he absence of my son during his incarceration has been
very difficult on me and his family. It has devastated us emotionally and
financially.” Moriel’s parents speak only of the alleged devastation of his
incarceration, not his exclusion. See 8 U.S.C. § 1182(h)(1)(B). Moriel was
not eligible for section 212(h) relief.
6
The government asserts, without citation, that Moriel waived his new
collateral attacks on his deportation hearing by not including them in his
initial appeal. But the government conceded to the district court that “[t]he
interests of justice thus favor an expeditious resolution of [Moriel’s]
claims, even those claims raised for the first time on remand.” We exercise
our discretion to address Moriel’s new arguments. See United States v.
Kellington, 217 F.3d 1084, 1092 (9th Cir. 2000) (holding that lower courts
on remand “are free as to anything not foreclosed by the mandate”) (inter-
nal quotation omitted); see also Morrison v. Mahoney, 399 F.3d 1042,
1046 (9th Cir. 2005) (permitting review of a new argument made on
remand because the trial court had the opportunity to address it); Colum-
bia Steel Casting Co. v. Portland Gen. Elec. Co., 111 F.3d 1427, 1443
(9th Cir. 1996) (reviewing a legal issue raised for the first time on remand
because review would not prejudice the opposing party).
UNITED STATES v. MORIEL-LUNA 14637
firearm-assault conviction categorically satisfied the federal
firearm statute. See Taylor v. United States, 495 U.S. 575
(1990).
At the time of Moriel’s deportation hearing, a deportable
alien was eligible for section 212(c) relief if the applicable
ground for deportation was substantially identical to a ground
for exclusion. Komarenko v. INS, 35 F.3d 432, 434 (9th Cir.
1994), overruled by Abebe v. Mukasey, 554 F.3d 1203, 1207
(9th Cir. 2009) (en banc) (per curiam). Our precedential view
of equal protection at the time of his deportation hearing
required that the government extend section 212(c) relief to
aliens facing deportation if those aliens would have been eli-
gible for the same relief had they left the United States and
attempted to reenter. Tapia-Acuna v. INS, 640 F.2d 223, 225
(9th Cir. 1981), overruled by Abebe, 554 F.3d at 1207.
Although his briefing is vague, when charitably construed,
Moriel’s argument is that his firearm offense was not a valid
ground for deportation and the remaining, valid grounds for
deportation are substantially similar to the “crime involving
moral turpitude” exclusion ground in section 212(a) of the
INA.
[7] Regardless of the merits of Moriel’s firearm-offense
claim,7 Moriel was still ineligible for section 212(c) relief
7
Specifically, Moriel argues that the federal firearm definition, 18
U.S.C. § 921(a)(3), excludes antique firearms while the California statute
for which he was convicted, Cal. Penal Code § 245(a)(2), does not. “The
categorical approach [of Taylor v. United States] requires us to compare
the elements of the statute of conviction . . . to the generic crime . . . and
then to determine whether the full range of conduct covered by [the crimi-
nal statute] falls within the meaning of that term.” Perez v. Mukasey, 512
F.3d 1222, 1225 (9th Cir. 2008). Because on the face of the statute it is
possible for California to convict a defendant of firearm assault with an
antique firearm but the federal government cannot do the same, California
Penal Code section 245(a)(2) may not satisfy the categorical approach to
determining a federal firearm offense. See United States v. Grisel, 488
F.3d 844, 850 (9th Cir. 2007).
14638 UNITED STATES v. MORIEL-LUNA
without an adjustment of status. Setting aside the IJ’s conclu-
sion that Moriel was deportable for a firearm offense, the
remaining ground for deportation—crime involving moral
turpitude—was not the only ground for which Moriel was
deportable. The government charged Moriel with deportation
because he committed an aggravated felony, and the IJ’s order
of deportation adopted that ground. See 8 U.S.C.
§§ 1251(a)(2)(A)(iii) (“Any alien who is convicted of an
aggravated felony at any time after entry is deportable.”),
1101(a)(43)(F) (aggravated felony means a crime of violence
for which the term of imprisonment imposed is at least five
years); 18 U.S.C. § 16 (crime of violence means the use,
attempted use, or threatened use of physical force or involves
a substantial risk that physical force may be used in the course
of committing the offense); United States v. Romero-Rendon,
220 F.3d 1159, 1160 (9th Cir. 2000) (affirming that California
Penal Code section 245(a)(2) is a crime of violence). Because
an aggravated felony is a deportable ground for which there
was no substantially identical ground for exclusion, Moriel
could not seek section 212(c) relief without adjusting his status.8
The government also may not be able to satisfy the modified categorical
approach, which involves a “limited examination of documents in the
record of conviction to determine if there is sufficient evidence to con-
clude that a defendant was convicted of the elements of the generically
defined crime even though his or her statute of conviction was facially
overinclusive.” Chang v. INS, 307 F.3d, 1185, 1189 (9th Cir. 2002).
Because none of the applicable judicial records identify the weapon Mor-
iel used, his conviction may not meet the conditions of a federal firearm
offense.
8
Our recent holding in Abebe v. Mukasey may limit section 212(c) relief
to aliens in admissibility proceedings, regardless of the grounds for depor-
tation. 554 F.3d at 1207 (“We thus overrule Tapia-Acuna’s holding that
there’s no rational basis for providing section 212(c) relief from inadmissi-
bility, but not deportation. . . . Since petitioner [in a deportation proceed-
ing] was not eligible for section 212(c) relief in the first place, the BIA
could not have committed an equal protection violation by denying him
such relief.”). Because we hold that Moriel was also deportable for com-
mitting an aggravated felony, we do not reach the applicability of Abebe.
UNITED STATES v. MORIEL-LUNA 14639
VI
[8] Finally, Moriel for the first time on remand argued that
he was deprived of his right to counsel at his deportation hear-
ing. 8 U.S.C. § 1362 guarantees an alien the right to counsel
of his or her choice at personal expense in immigration pro-
ceedings. Mendoza-Mazariegos v. Mukasey, 509 F.3d 1074,
1080 (9th Cir. 2007). “To obtain a knowing and voluntary
waiver of the statutory right to counsel, the IJ must (1) inquire
specifically as to whether petitioner wishes to continue with-
out a lawyer; and (2) receive a knowing and voluntary affir-
mative response.” Id. (internal quotation omitted). Moreover,
“[w]hen an immigrant has engaged counsel and the IJ is
aware of the representation, if counsel fails to appear, the IJ
must take reasonable steps to ensure that the immigrant’s stat-
utory right to counsel is honored.” Hernandez-Gil v. Gonza-
lez, 476 F.3d 803, 808 (9th Cir. 2007). In addition, an IJ
“must provide aliens with reasonable time to locate counsel
and permit counsel to prepare for the hearing.” Biwot v. Gon-
zales, 403 F.3d 1094, 1099 (9th Cir. 2005).
We will uphold the IJ’s discretionary decision not to grant
a continuance absent a showing of clear abuse. Id. Whether an
IJ has provided a reasonable time to find counsel is a fact-
intensive inquiry, consideration of which includes “any barri-
ers that frustrated a petitioner’s efforts to obtain counsel, such
as being incarcerated or an inability to speak English.” Id.
Moreover, at the time of Moriel’s deportation hearing, Komarenko was
good law holding, among other things, that a defendant convicted of Cali-
fornia Penal Code section 245(a)(2) was not eligible for section 212(c)
relief without an adjustment of status. 35 F.3d at 434. An IJ must inform
the respondent of his or her apparent eligibility to apply for section 212(c)
relief, and nothing about Moriel’s creative argument was apparent during
his deportation proceeding. Because then-applicable precedent weighed
heavily against Moriel’s argument, the IJ’s actions did not make the
deportation proceedings fundamentally unfair. See Ubaldo-Figueroa, 364
F.3d at 1047.
14640 UNITED STATES v. MORIEL-LUNA
Moriel argues that he did not knowingly and voluntarily
waive his right to counsel because the IJ did not inquire spe-
cifically regarding whether he wished to continue the hearing
pro se. He also faults the IJ for not asking why the attorney
who had entered an appearance eight months earlier was not
present at the hearing and for telling Moriel that he would
expect Moriel to continue pro se if he returned without coun-
sel after the one-week continuance.
[9] Although the IJ did not explicitly ask Moriel if he
waived his right to counsel, the IJ was not obligated to grant
indefinite continuances if Moriel did not produce counsel but
refused to waive his right. Here, the IJ informed Moriel of his
right to counsel, asked if he would like to find an attorney,
granted a one-week continuance, and provided him with a list
of legal-services organizations in the area. The IJ certainly
gave Moriel a reasonable time to get a new lawyer or to com-
municate with his prior lawyer. Also, the IJ’s warning gave
Moriel notice that the IJ would consider that Moriel was pro-
ceeding pro se if he did not obtain counsel during the continu-
ance that was given and that another continuance would not
be granted. Significantly, when the hearing resumed, Moriel
did not ask for more time to find an attorney, mention the
attorney who earlier made an appearance, or indicate that he
had tried to find an attorney. Moriel spoke English and was
not incarcerated, factors weighing against a lengthy continu-
ance. See id. Accordingly, we hold that the IJ did not abuse
his discretion by concluding that one week was a reasonable
time for Moriel to find counsel and in telling Moriel that
returning without an attorney would result in a waiver of his
right to counsel. The IJ took reasonable steps to honor Mor-
iel’s right to counsel. See Hernandez-Gil, 476 F.3d at 808.
VII
Moriel was ineligible to receive section 212(c) or section
212(h) relief absent an adjustment of status. In order to adjust
his status, Moriel needed an immediately available visa.
UNITED STATES v. MORIEL-LUNA 14641
Because a visa petition had neither been filed on behalf of
Moriel at the time of his hearing nor could have been filed by
either his girlfriend or his noncitizen parents, the government
has shown that a visa was not immediately available. The IJ
also did not deprive Moriel of his right to counsel. We affirm.
AFFIRMED.