Francisco Pimentel-Hernandez v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 20 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANCISCO PIMENTEL-HERNANDEZ, No. 19-72247
AKA Fransico Adelma, AKA Ramon Ortega
Rodriguez, AKA Ramon Rodriguez-Ortega, Agency No. A099-063-199
Petitioner,
MEMORANDUM*
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 14, 2021**
Before: WALLACE, CLIFTON, and HURWITZ, Circuit Judges.
Francisco Pimentel-Hernandez, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s (“IJ”) decision denying his request for a continuance
*
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).
and his application for cancellation of removal. Our jurisdiction is governed by 8
U.S.C. § 1252. We review for abuse of discretion the denial of a continuance.
Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009). We review de novo claims
of due process violations in immigration proceedings. Simeonov v. Ashcroft, 371
F.3d 532, 535 (9th Cir. 2004). We deny in part and dismiss in part the petition for
review.
There was no abuse of discretion in the denial of Pimentel-Hernandez’s
request for a continuance where he did not demonstrate good cause. See 8 C.F.R. §
1003.29; Ahmed, 569 F.3d at 1012 (listing factors to be considered in determining
whether the denial of a continuance constitutes an abuse of discretion).
Pimentel-Hernandez’s due process claim fails because he has not established
error or prejudice from the denial of the continuance. See Lata v. INS, 204 F.3d
1241, 1246 (9th Cir. 2000) (requiring error and prejudice to prevail on a due
process claim).
We lack jurisdiction to review the discretionary determination that Pimentel-
Hernandez did not show exceptional and extremely unusual hardship to a
qualifying relative for purposes of cancellation of removal. See 8 U.S.C. §
1252(a)(2)(B)(i); Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir. 2005).
Pimentel-Hernandez’s reliance on Guerrero-Lasprilla v. Barr, ––– U.S. –––, 140
S. Ct. 1062 (2020), is misplaced. See Ramadan v. Gonzales, 479 F.3d 646, 650
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(9th Cir. 2007) (application of a legal standard to undisputed facts is a legal
question under 8 U.S.C. § 1252(a)(2)(D)); see also Mendez-Castro v. Mukasey,
552 F.3d 975, 979 (9th Cir. 2009) (Ramadan does not apply to the subjective
hardship standard).
We also lack jurisdiction to consider Pimentel-Hernandez’s assertions that
the BIA’s cancellation of removal precedent is arbitrary and inconsistent where his
contention that he raised these challenges to the BIA is unsupported by the record.
See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks
jurisdiction to review claims not presented below). We further reject as
unsupported by the record Pimentel-Hernandez’s contentions that the IJ and BIA
failed to address issues, applied incorrect legal standards, or otherwise erred in the
analysis of his cancellation of removal claim. Thus, the petition does not raise a
colorable legal or constitutional claim over which we retain jurisdiction. See 8
U.S.C. § 1252(a)(2)(D); Martinez-Rosas, 424 F.3d at 930.
Pimentel-Hernandez’s challenge to the immigration court’s jurisdiction is
foreclosed by Karingithi v. Whitaker, 913 F.3d 1158, 1159 (9th Cir. 2019), because
he received a notice of hearing that included the time and date of his hearing.
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The temporary stay of removal remains in place until issuance of the
mandate.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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