Cebrerro De La Cruz v. Holder , 399 F. App'x 317 ( 2010 )

FILED
NOT FOR PUBLICATION OCT 14 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
CRISOFORO CEBRERRO DE LA No. 07-72518
CRUZ,
Agency No. A098-177-425
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
CRISOFORO CEBRERRO DE LA No. 08-71573
CRUZ,
Agency No. A098-177-425
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Submitted October 4, 2010 **
Seattle, Washington
Before: THOMAS and M. SMITH, Circuit Judges, and EZRA, District Judge.***
Petitioner Crisoforo Cebrerro de la Cruz is a Mexican citizen who has
conceded that he is removable from the United States. De la Cruz contends,
however, that the Immigration Judge (IJ) abused his discretion and violated de la
Cruz’s due process rights by denying a motion to continue removal proceedings
pending the Department of Homeland Security’s (DHS’s) disposition of his request
for prosecutorial discretion. As the facts and procedural history are familiar to the
parties, we do not recite them here except as necessary to explain our disposition.
We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition.
“The decision to grant or deny [a] continuance is within ‘the sound
discretion of the judge and will not be overturned except on a showing of clear
abuse.’” Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009) (quoting
Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1247 (9th Cir. 2008) (per curiam)).
“When reviewing an IJ’s denial of a continuance, we consider a number of factors,
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
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including: (1) the nature of the evidence excluded [or other statutory right
impaired] as a result of the denial of the continuance, (2) the reasonableness of the
immigrant’s conduct, (3) the inconvenience to the court, and (4) the number of
continuances previously granted.” Ahmed, 569 F.3d at 1012. In light of these four
factors, we conclude that the IJ did not commit “clear abuse” by denying de la
Cruz’s second motion to continue removal proceedings.
First, de la Cruz had no “statutory right” that was “effectively pretermitted”
by the IJ’s action. Contra Ahmed, 569 F.3d at 1013. De la Cruz sought a
continuance in order to allow DHS to act on his request for prosecutorial
discretion. However, DHS’s exercise of prosecutorial discretion is purely
discretionary. See Ira J. Kurzban, Kurzban’s Immigration Law Sourcebook 326
(12th ed. 2010) (“Prosecutorial discretion includes a broad spectrum of
discretionary enforcement decisions including: whether to charge an individual;
what charges to bring; to drop any charges in an ongoing case; and to settle a case
by plea bargain.”); see also Reno v. American-Arab Anti-Discrimination
Committee, 525 U.S. 471, 483 (1999) (“At each stage the Executive has discretion
to abandon the endeavor[.]”). Unlike the petitioner in Ahmed, who had a statutory
right to receive a decision on his pending visa appeal, de la Cruz had no statutory
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right to receive a decision on his pending request for prosecutorial discretion. See
Ahmed, 569 F.3d at 1013.
Second, de la Cruz’s conduct contributed in part to his need for a
continuance. Despite receiving a Notice to Appear nearly five months before the
initial hearing date, he waited until three days before the hearing to request
prosecutorial discretion. Accordingly, “[t]he need for a continuance . . . result[ed]”
at least in part “from . . . unreasonable conduct on [de la Cruz’s] part.” Id.With respect to the third and fourth factors, de la Cruz had already received
a prior continuance and was essentially asking the IJ for an open-ended
continuance into the indefinite future. As this court has previously noted, “an IJ
cannot be expected to continue a case indefinitely.” Id. at 1014.
In light of these considerations, the IJ did not abuse his discretion by
denying the motion for a continuance. See Sandoval-Luna, 526 F.3d at 1247(holding that IJ did not abuse its discretion by denying petitioner’s request for
continuance in order to benefit from potential future regulatory changes).
De la Cruz did not suffer a due process violation. He was represented by
counsel and received a full and fair opportunity to present evidence and legal
arguments to the IJ. See, e.g., Vargas-Hernandez v. Gonzales, 497 F.3d 919,
926–27 (9th Cir. 2007) (“Where an alien is given a full and fair opportunity to be
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represented by counsel, to prepare an application for . . . relief, and to present
testimony and other evidence in support of the application, he or she has been
provided with due process.”). In addition, de la Cruz has not shown that he was
prejudiced by the IJ’s refusal to continue proceedings because he has not shown
that, had proceedings been continued, DHS would have exercised its prosecutorial
discretion in his favor. See Ali v. Mukasey, 524 F.3d 145, 148, 150 (2d Cir. 2008)
(rejecting petitioners’ argument that they had been “depriv[ed] . . . of the
opportunity to benefit from the favorable exercise of prosecutorial discretion”
because they failed to show any prejudice resulting from the lost opportunity).
Finally, de la Cruz has waived any arguments regarding the Board of
Immigration Appeals’ denial of his motion to reopen proceedings. Ghahremani v.
Gonzales, 498 F.3d 993, 997 (9th Cir. 2007) (“[A]n issue referred to in the
appellant’s statement of the case but not discussed in the body of the opening brief
is deemed waived.” (internal quotation marks and citation omitted)).
PETITION DENIED.
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