Ignacio Verdeja Aguayo v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 18 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
IGNACIO VERDEJA AGUAYO, No. 20-73106
Petitioner, Agency No. A215-927-139
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 8, 2022**
Honolulu, Hawaii
Before: WARDLAW, NGUYEN, and OWENS, Circuit Judges.
Petitioner Ignacio Verdeja Aguayo, a native and citizen of Mexico, petitions
for review of a decision by the Board of Immigration Appeals (“BIA”) affirming
the denial by an immigration judge (“IJ”) of his motion to continue removal
proceedings. Verdeja Aguayo sought a continuance to allow him to pursue a
*
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).
motion to reopen and appeal of the denial by U.S. Citizenship and Immigration
Services (“USCIS”) of an I-130 petition for lawful permanent resident status that
his son had filed on his behalf. We have jurisdiction under 8 U.S.C. § 1252.
Reviewing for abuse of discretion, see Pleitez-Lopez v. Barr, 935 F.3d 716, 719
(9th Cir. 2019), we deny the petition.1
The BIA did not abuse its discretion in concluding that “good cause” did not
exist for the IJ to grant a continuance under these circumstances. See 8 C.F.R. §
1003.29. The IJ reasonably determined that a continuance was not warranted
because Verdeja Aguayo had not demonstrated that he was likely to succeed in
overturning USCIS’s denial of the I-130 petition. See Matter of L-A-B-R-, 27 I. &
N. Dec. 405, 412 (A.G. 2018) (“[W]hether good cause exists for a continuance for
a collateral proceeding . . . should turn primarily on the likelihood that the
collateral relief will be granted and will materially affect the outcome of the
removal proceedings.”). The I-130 petition was deemed abandoned by USCIS
because no timely response was received to a Request for Evidence, and Verdeja
1
Verdeja Aguayo represents that he plans further challenges to the I-130 denial
through a motion to reconsider with the BIA and a lawsuit in federal district court.
Because a continuance would allow Verdeja Aguayo to continue to pursue
collateral relief and prevent a final order of removal entirely if he succeeds, there is
“some remaining collateral consequence that may be redressed by success on the
petition.” Del Cid Marroquin v. Lynch, 823 F.3d 933, 935 (9th Cir. 2016) (per
curiam) (citation and quotation marks omitted). Therefore, the petition for review
is not moot.
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Aguayo presented no persuasive evidence or legal argument that the agency would
reverse its decision and decide the I-130 petition on the merits. It was thus not
arbitrary or irrational for the BIA and IJ to determine it was “speculative” whether
the I-130 denial would be overturned. See Pleitez-Lopez, 935 F.3d at 719 (“The
BIA abuses its discretion when its decision is arbitrary, irrational, or contrary to
law.” (citation omitted)). The BIA’s decision was also supported by the IJ’s
numerous prior continuances and DHS’s opposition to a further continuance.
See L-A-B-R-, 27 I. & N. Dec. at 415 (“[G]ermane secondary factors may include .
. . DHS’s position on the motion for continuance . . . [and] the number of hearings
held and continuances granted previously.”).
Verdeja Aguayo’s arguments are unavailing. The BIA was not required to
“expressly address” the factors enumerated in Ahmed v. Holder, 569 F.3d 1009(9th Cir. 2009) and Cui v. Mukasey, 538 F.3d 1289 (9th Cir. 2008). See Hui Ran
Mu v. Barr, 936 F.3d 929, 936 (9th Cir. 2019). Nor do our cases applying those
factors indicate that the BIA abused its discretion here. The BIA did not err in
weighing the prior history of continuances, which were largely requested by
Verdeja Aguayo, against another continuance. See Garcia v. Lynch, 798 F.3d 876,
881 (9th Cir. 2015) (weighing just three prior continuances against a further
continuance). Likewise, the BIA did not err in weighing Verdeja Aguayo’s low
likelihood of success against a continuance. See id. (weighing against continuance
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that the petitioner “previously sought” the same form of collateral relief “to no
avail”). Finally, Verdeja Aguayo fails to show that the absence of inconvenience
renders the denial an abuse of discretion.
PETITION DENIED.2
2
The motions to supplement the record on appeal are denied as moot. Dkt. 39, 41.
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