Aurora Olea-Serefina v. Merrick Garland ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AURORA OLEA-SEREFINA, AKA No. 20-72231
Zerefina Aurora Olea Daza, Aurora
Seferina Olea, Aurora Olea-Zerefina, Agency No.
Petitioner, A074-306-081
v.
OPINION
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 8, 2021 *
San Francisco, California
Filed May 19, 2022
Before: Susan P. Graber and Daniel P. Collins, Circuit
Judges, and Jennifer Choe-Groves, Judge **
Opinion by Judge Collins
*
The panel unanimously concludes that this case is suitable for
decision without oral argument. See FED. R. APP. P. 34(a)(2)(C).
**
The Honorable Jennifer Choe-Groves, Judge for the United States
Court of International Trade, sitting by designation.
2 OLEA-SEREFINA V. GARLAND
SUMMARY ***
Immigration
Denying in part and dismissing in part Zerefina Aurora
Olea Daza’s petition for review of a decision of the Board of
Immigration Appeals, the panel held that Olea’s conviction
for corporal injury upon a child, in violation of California
Penal Code § 273d(a), is a crime of violence aggravated
felony that made her ineligible for cancellation of removal.
The Immigration and Nationality Act (“INA”) defines
“aggravated felony” to include a “crime of violence (as
defined in section 16 of title 18 . . .) for which the term of
imprisonment [is] at least one year.” 8 U.S.C.
§ 1101(a)(43)(F). Because Olea’s conviction records
confirmed a jail term of 365 days, the panel explained that
whether Olea was convicted of an aggravated felony turned
solely on whether a violation of § 273d(a) constitutes a
“crime of violence” under 18 U.S.C. § 16.
Section 16(a) defines a “crime of violence” as “an
offense that has as an element the use, attempted use, or
threatened use of physical force against the person or
property of another.” The panel explained that, under the
categorical approach, the key question here was whether the
offense defined in § 273d(a) contains, as an element, the
actual, attempted, or threatened use of “physical force,”
which the Supreme Court has held means “violent physical
force,” – that is, force capable of causing physical pain or
injury.
***
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
OLEA-SEREFINA V. GARLAND 3
The panel explained that the relevant language of
§ 273d(a) imposes criminal punishment on any “person who
willfully inflicts upon a child any cruel or inhuman corporal
punishment or an injury resulting in a traumatic condition.”
The BIA noted that this phrasing is very similar to California
Penal Code § 273.5(a), which punishes any “person who
willfully inflicts corporal injury resulting in a traumatic
condition upon” specified persons. Because this court has
held that a violation of § 273.5(a) is categorically a crime of
violence, the BIA concluded that the same must be true for
§ 273d(a), which includes comparable language and which,
in all events, requires physical harm to the child.
Olea contended that the statutes differ in a way that
renders this court’s analysis of § 273.5(a) inapplicable to
§ 273d(a). Specifically, Olea noted that this court held that
§ 273.5(a) is a crime of violence because the plain terms of
the statute require a person willfully to inflict upon another
person a traumatic condition. By contrast, she contended
that § 273d(a) does not categorically require a traumatic
condition or even a corporal injury.
The panel disagreed, explaining that under the California
courts’ binding determination of the elements of a violation
of § 273d(a), any conviction under § 273d(a) requires proof
that the “punishment” or “injury” resulted in a “traumatic
condition.” The panel also noted that § 273d(a) requires that
the punishment or injury be inflicted willfully, and the
California courts have held that “willfully inflicted” requires
“a direct application of force by the defendant upon the
victim.” In light of this understanding of the elements of
§ 273d(a) as construed by the California courts, the panel
concluded that a violation of that statute is categorically a
crime of violence under this court’s precedent.
4 OLEA-SEREFINA V. GARLAND
The panel rejected the remaining challenges to Olea’s
removal order. First, the panel concluded that the agency
did not abuse its discretion in denying Olea a further
continuance, explaining that the IJ generously afforded her
eight continuances and the fact that, after more than four
years, Olea claimed to have hired an attorney (but no
appearance was entered by any attorney and none appeared
at her hearing) did not require the IJ to grant yet another
continuance. Second, the panel concluded that the BIA
properly rejected Olea’s contentions that the IJ had violated
her due process rights by failing to develop the record,
explaining that the IJ adequately explored the possibility of
asylum with Olea and provided her with an application.
Finally, the panel determined that it lacked jurisdiction to
review the agency’s denial of voluntary departure. The
panel explained that her constitutional claims were purely
conclusory and devoid of supporting factual detail or legal
argument, and therefore, the panel deemed any such claim to
be forfeited. The panel also noted that Olea’s assertion that
the agency did not properly weigh the equities in denying
voluntary departure is precisely what INA § 240B(f)
precludes the court from reviewing.
COUNSEL
David M. Whalen, San Diego, California, for Petitioner.
Zoe J. Heller, Senior Litigation Counsel; Karen L. Melnik,
Trial Attorney; Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C.; for Respondent.
OLEA-SEREFINA V. GARLAND 5
OPINION
COLLINS, Circuit Judge:
Petitioner Zerefina Aurora Olea Daza (“Olea”), a native
and citizen of Mexico, petitions for review of an order of the
Board of Immigration Appeals (“BIA”) upholding the
decision of the Immigration Judge (“IJ”) denying her
application for cancellation of removal and ordering her
removed to Mexico. We have jurisdiction under § 242 of the
Immigration and Nationality Act (“INA”), 8 U.S.C. § 1252,
and we deny the petition in part and dismiss it in part.
I
In March 2014, Olea was served with a notice to appear
charging that she was removable under INA
§ 212(a)(6)(A)(i) because she had entered the U.S.
unlawfully near Tecate, California in 1994. 8 U.S.C.
§ 1182(a)(6)(A)(i). Olea first appeared in immigration court
in May 2014, and the IJ twice continued Olea’s removal
proceedings, for a total of 13 months, to allow Olea to locate
counsel.
At a subsequent hearing in June 2015, Olea stated that
she was unable to afford an attorney and was prepared to
proceed with her case. In response to the IJ’s questions
concerning whether she contested removability, Olea
admitted entering near Tecate in 1994, but she initially
denied that she had done so illegally. The IJ then had the
following exchange with Olea:
Q: So, you came through the border and were
inspected by an officer, or did you come
illegally through the hills?
6 OLEA-SEREFINA V. GARLAND
A: Illegally.
Q: Have you ever had papers to be here
legally?
A: No.
Based on that answer, the IJ found Olea removable as
charged.
The IJ then asked Olea a series of questions in order to
explore possible grounds for relief. In response, Olea stated
that she had been in the United States continuously since
1994; that she had three U.S. citizen minor children; that she
had never been convicted of a crime; that she had not
previously appeared before an IJ or been granted voluntary
departure; and that she did not fear that anyone would harm
her if she returned to Mexico. The attorney for the
Department of Homeland Security (“DHS”) noted that two
of Olea’s responses were inaccurate: Olea had been
convicted of a felony in California state court in April 2003,
and she apparently had been granted voluntary departure in
August 1995.
The IJ noted that Olea normally would have been eligible
for cancellation of removal, and she gave Olea a cancellation
application to complete. See 8 U.S.C. § 1229b(b)(1) (stating
that removal may be cancelled for an alien who has been
continuously present in the U.S. for more than 10 years and
who, inter alia, shows that removal would result in
“exceptional and extremely unusual hardship” for a U.S.
citizen child). The IJ expressed concern, however, that
Olea’s criminal conviction might bar that relief, and so the
IJ revisited the question of whether Olea was afraid to return
to Mexico: “So, let me ask you one more time. Do you have
OLEA-SEREFINA V. GARLAND 7
any fear if anyone would harm you in Mexico?” This time,
Olea answered “Yes.” The IJ then handed Olea an
application for asylum and withholding of removal and
explained what Olea would have to show to qualify for such
relief. Olea also indicated that she intended to file an
application for a “U-visa” with U.S. Citizenship and
Immigration Services (“USCIS”). Cf. Medina Tovar v.
Zuchowski, 982 F.3d 631, 633 (9th Cir. 2020) (en banc)
(explaining that a “U visa . . . is designed to grant legal status
to certain non-citizen victims of crime who assist law
enforcement”).
At a subsequent hearing in November 2015, the IJ
granted Olea a further continuance to allow Olea to complete
her applications, and the IJ warned her that she might not be
granted a further continuance absent exceptional
circumstances. At the next hearing in April 2016, Olea
submitted her application for cancellation of removal.
Despite the IJ’s earlier warnings that further extensions
might not be granted, the IJ again postponed Olea’s removal
hearing, this time in light of Olea’s assertion that her U-visa
application was pending. However, at the ensuing
September 2016 hearing, DHS counsel reported that the U-
visa application had actually been denied in January 2016.
A friend who appeared with Olea at the hearing and who was
assisting her with her applications explained that the U-visa
application had to be resubmitted to USCIS in light of issues
concerning the supporting paperwork. With DHS’s
concurrence, the IJ granted another continuance in light of
the new U-visa application.
At a further hearing in May 2017, Olea handed the IJ
paperwork showing that the second U-visa application had
been received by USCIS in March 2017, and the IJ again
granted a continuance. In October 2017, at the next hearing,
8 OLEA-SEREFINA V. GARLAND
the IJ granted yet another continuance in light of the still-
pending U-visa application and Olea’s representations that
she had been trying to find an attorney. The IJ stated,
however, that even if Olea still lacked an attorney at the time
of the next hearing, she would proceed to address the merits
of Olea’s application for cancellation of removal.
The hearing on the cancellation application was held in
April 2018. At the start of the hearing, Olea asked for a
further continuance, stating that she had recently hired an
attorney, whose last name she did not recall, and that she had
not yet heard anything about the U-visa application. The IJ
denied the requested continuance, noting that Olea had been
given ample time to get an attorney, that no attorney had
entered an appearance, and that the case had been pending
for four years. DHS counsel noted for the record that the
second U-visa application had been denied in November
2017. Turning to the merits of the application for
cancellation, the IJ denied it on the grounds that Olea’s
conviction for corporal injury upon a child in violation of
California Penal Code § 273d(a) rendered her statutorily
ineligible for that relief. Specifically, the IJ concluded that
a violation of § 273d(a) was categorically both a crime
involving moral turpitude and an aggravated felony, and that
Olea was therefore ineligible for cancellation under INA
§ 240A(b)(1). Due to the nature of Olea’s conviction, the IJ
also denied, as a matter of discretion, Olea’s alternative
request for voluntary departure and ordered her removed to
Mexico.
The BIA upheld the denial of cancellation of removal,
based solely on the ground that a violation of § 273d(a) is
categorically an aggravated felony. The BIA also rejected
Olea’s contentions that the IJ violated her due process rights
by allegedly failing to develop the record, that the IJ should
OLEA-SEREFINA V. GARLAND 9
have granted a further continuance, and that the IJ should
have granted voluntary departure. Olea timely petitioned
this court for review.
II
To be eligible for cancellation of removal under INA
§ 240A(b)(1), an alien must not have been convicted of an
offense described in, inter alia, INA § 237(a)(2). See 8
U.S.C. § 1229b(b)(1)(C). Among the offenses listed in
§ 237(a)(2) is “an aggravated felony.” See id.
§ 1227(a)(2)(A)(iii). We hold that the BIA properly
concluded that Olea’s 2003 conviction for violating
California Penal Code § 273d(a) constituted a conviction for
an aggravated felony within the meaning of the INA, thereby
rendering her ineligible for cancellation of removal.
The INA’s definition of “aggravated felony” includes,
inter alia, a “crime of violence (as defined in section 16 of
title 18 . . .) for which the term of imprisonment [is] at least
one year.” 8 U.S.C. § 1101(a)(43)(F). Olea’s conviction
records confirm that her sentence for her § 273d(a)
conviction included, as a condition of her probation, a jail
term of 365 days, which meets the statutory requirement of
a term of “at least one year.” Id.; see also Arellano
Hernandez v. Lynch, 831 F.3d 1127, 1133 (9th Cir. 2016)
(holding that a sentence of 365 days in jail that is imposed
as a condition of probation “equates to imprisonment of ‘at
least one year’” (citation omitted)). Olea argues that the
term of imprisonment was less than one year because she
actually served fewer than 365 days in jail, but the INA
specifically provides that “[a]ny reference to a term of
imprisonment or a sentence with respect to an offense is
deemed to include the period of incarceration or confinement
ordered by a court of law regardless of any suspension of the
imposition or execution of that imprisonment or sentence in
10 OLEA-SEREFINA V. GARLAND
whole or in part.” 8 U.S.C. § 1101(a)(48)(B). Because
Olea’s sentence, as ordered by the court, included a jail-term
of 365 days, it met the statutory one-year minimum.
Accordingly, whether Olea was convicted of an “aggravated
felony” turns solely on whether a violation of § 273d(a)
constitutes a “crime of violence” under 18 U.S.C. § 16.
Reviewing that question de novo, Amaya v. Garland, 15
F.4th 976, 980 (9th Cir. 2021), we conclude that it does.
Section 16(a) defines a “crime of violence” as “an
offense that has as an element the use, attempted use, or
threatened use of physical force against the person or
property of another.” 18 U.S.C. § 16(a). 1 In determining
whether a violation of § 273d(a) constitutes a “crime of
violence’ under that definition, we apply a “categorical
approach,” meaning that our “sole focus is on the elements
of the relevant statutory offense, not on the facts underlying
the convictions.” United States v. Watson, 881 F.3d 782,
784 (9th Cir. 2018). Consequently, the key question here is
whether the offense defined in § 273d(a) contains, as an
element, the actual, attempted, or threatened use of “physical
force,” which the Supreme Court has held means “‘violent’
physical force—‘that is, force capable of causing physical
pain or injury.’” Id. (quoting Johnson v. United States, 559
U.S. 133, 140 (2010)). We therefore must identify the
elements of a violation of § 273d(a) and determine whether
they include “the level of force required by the federal
1
Section 16 contains a second, “residual clause” that also includes,
in the definition of “crime of violence,” “‘any other offense that is a
felony and that, by its nature, involves a substantial risk that physical
force against the person or property of another may be used in the course
of committing the offense.’” Sessions v. Dimaya, 138 S. Ct. 1204, 1211
(2018) (quoting 18 U.S.C. § 16(b)). However, the Supreme Court has
invalidated that residual clause as “impermissibly vague.” Id. at 1210.
OLEA-SEREFINA V. GARLAND 11
generic definition.” United States v. Ayala-Nicanor, 659
F.3d 744, 752 (9th Cir. 2011).
The relevant language of § 273d(a) imposes criminal
punishment on “[a]ny person who willfully inflicts upon a
child any cruel or inhuman corporal punishment or an injury
resulting in a traumatic condition.” See CAL. PENAL CODE
§ 273d(a). The BIA noted that this phrasing is very similar
to a separate domestic violence offense currently set forth in
California Penal Code § 273.5(a), which punishes “[a]ny
person who willfully inflicts corporal injury resulting in a
traumatic condition upon” specified persons, including a
spouse, former spouse, or cohabitant. See id. § 273.5(a).
Because we have held that a violation of § 273.5(a) is
categorically a crime of violence, see Ayala-Nicanor, 659
F.3d at 746; Banuelos-Ayon v. Holder, 611 F.3d 1080, 1083–
86 (9th Cir. 2010); United States v. Laurico-Yeno, 590 F.3d
818, 820 (9th Cir. 2010), the BIA concluded that the same
must be true with respect to § 273d(a), which includes
comparable language and which, in all events, “requires
physical harm to the child in order to be violated.”
Olea contends, however, that the statutes differ in a way
that renders our analysis in these cases inapplicable to
§ 273d(a). Specifically, Olea notes that we held that
§ 273.5(a) is a crime of violence because “the plain terms of
the statute require a person willfully to inflict upon another
person a traumatic condition.” Ayala-Nicanor, 659 F.3d at
749 (quoting Laurico-Yeno, 590 F.3d at 821) (emphasis
added); see also Banuelos, 611 F.3d at 1084 (holding that
§ 273.5(a) requires the use of violence because it “requires
that the defendant ‘willfully inflict . . . corporal injury
resulting in a traumatic condition’” (emphasis added by
court)). By contrast, she contends, § 273d(a) does not
categorically require “a traumatic condition” or even a
12 OLEA-SEREFINA V. GARLAND
“corporal injury.” That is true, according to Olea, because
§ 273d(a) assertedly permits conviction if the defendant
willfully inflicts upon a child either (1) “any cruel or
inhuman corporal punishment” or (2) “an injury resulting in
a traumatic condition.” This argument fails, because it
ignores the fact that, in applying the categorical approach to
a state offense, we are bound by the state courts’
“interpretation of state law, including [their] determination
of the elements” of an offense. Johnson, 559 U.S. at 138;
see also Ryman v. Sears, Roebuck & Co., 505 F.3d 993, 995
(9th Cir. 2007) (holding that this court must “follow the
decisions of the state’s intermediate appellate courts” absent
“convincing evidence” the state supreme court would decide
otherwise (citations omitted)). Contrary to how Olea reads
the statute, the California courts have consistently held that
a “traumatic condition” is a required element of any
violation of § 273d(a).
In 1961, the California court of appeal in People v.
Stewart, 10 Cal. Rptr. 217 (Ct. App. 1961), addressed the
then-existing version of § 273d, which imposed punishment
on “any person who wil[l]fully inflicts upon any child any
cruel or inhuman corporal punishment or injury resulting in
a traumatic condition.” See 1957 Cal. Stat. 2673, ch. 1342,
§ 1. 2 The court held that “[n]o conviction under section
273d may be had without evidence that the child has suffered
a traumatic condition.” Stewart, 10 Cal. Rptr. at 219. By
holding that a “traumatic condition” is a required element of
any conviction under § 273d, the court effectively read the
2
In subsequent amendments, the Legislature redesignated the
relevant language as subsection (a) and made other minor changes. In
1999, the Legislature further amended § 273d(a) by adding the word
“an” before “injury.” See 1999 Cal. Stat. 4937, ch. 622, § 8. We discuss
the effect of this amendment below. See infra at 13–15.
OLEA-SEREFINA V. GARLAND 13
statute as having two main elements: it applies to “any
person who [1] wil[l]fully inflicts upon any child any cruel
or inhuman corporal punishment or injury [2] resulting in a
traumatic condition.” Consistent with Stewart, the court of
appeal in People v. Thomas, 135 Cal. Rptr. 644 (Ct. App.
1976), held that the “traumatic condition” clause was
applicable in a case in which the defendant was charged with
“one count of inflicting cruel and inhuman corporal
punishment on a child” in violation of § 273d. Id. at 645–46
(rejecting contention that statute was unconstitutionally
vague). And in People v. Cockburn, 135 Cal. Rptr. 2d 807,
814 (Ct. App. 2003), the court of appeal upheld, based on
Thomas, the following description of the elements of the
§ 273d(a) offense, which was contained in the relevant
official pattern jury instruction:
“1. A person willfully inflicted cruel or
inhuman punishment or an injury upon the
body of a child; and
2. The infliction of this punishment or this
injury resulted in a traumatic condition.”
Id. at 814 (emphasis added) (quoting California Jury
Instructions, Criminal (“CALJIC”), No. 9.36 (7th ed.
2003)). 3
Stewart, Thomas, and Cockburn all construed the earlier
version of what is now § 273d(a), i.e., prior to its amendment
3
Cockburn committed his offense in November 1999, which was
after the 1999 amendment was enacted in October 1999, but before it
took effect. See Cockburn, 135 Cal. Rptr. 2d at 811 n.7 (noting that the
prior version of the statute applied in Cockburn’s case); see also Cal.
Const. art. IV, § 8(c) (prescribing effective dates of statutes). Cockburn
thus construed the prior version of the statute.
14 OLEA-SEREFINA V. GARLAND
in 1999. See supra note 3. That amendment added the single
word “an” before the word “injury,” so that the relevant
language now reads: “Any person who willfully inflicts upon
a child any cruel or inhuman corporal punishment or an
injury resulting in a traumatic condition is guilty of a
felony.” See CAL. PENAL CODE § 273d(a). 4 The addition of
that article suggests that “an injury” is a distinct noun phrase
from “any cruel or inhuman corporal punishment,” which in
turn indicates that the adjectival phrase “cruel and inhuman
corporal” modifies only “punishment” and not “injury.” But
that does not mean that the phrase that follows those two
noun phrases—“resulting in a traumatic condition”—applies
only to the second of these two phrases and not to the first.
On the contrary, the California courts have continued to
adhere to the view that in all cases § 273d(a) requires proof
of “the infliction of a traumatic condition (i.e., physical
injury) upon a child.” People v. Moussabeck, 68 Cal. Rptr.
3d 877, 881 (Ct. App. 2007) (citing Thomas). 5
4
This was also the relevant phrasing at the time that Olea committed
her offense in 2003. See 1999 Cal. Stat. 4937, ch. 622, § 8.
5
Further, this reading of § 273d(a) has been consistently enshrined
in the applicable California pattern jury instructions. Indeed, although
Cockburn arose under the prior statute, the version of the pattern
instruction endorsed in that case was the post-amendment version that
was adopted in 2003 and that included the word “an” before “injury.”
See 135 Cal. Rptr. 2d at 814 (quoting CALJIC No. 9.36 (7th ed. 2003)).
That version notably retained the requirement that a “traumatic
condition” must always be shown. See id. The current pattern jury
instruction likewise preserves that requirement in defining the elements
of a § 273d(a) violation as follows:
1. The defendant willfully inflicted (cruel or inhuman
physical punishment/ [and/or] an injury) on a child;
OLEA-SEREFINA V. GARLAND 15
Accordingly, we conclude that, under the California
courts’ binding “determination of the elements” of a
violation of § 273d(a), see Johnson, 559 U.S. at 138, any
conviction under § 273d(a) requires proof that the
“punishment” or “injury” “result[ed] in a traumatic
condition.” See CAL. PENAL CODE § 273d(a). Moreover,
Stewart further defined a “traumatic condition,” for purposes
of § 273d, “as a wound or other abnormal bodily condition
resulting from the application of some external force.” 10
Cal. Rptr. at 219; see also Thomas, 135 Cal. Rptr. at 646
(same). That definition was clarified, in the same CALJIC
pattern instruction upheld in Cockburn, to mean “a condition
of the body, such as a wound or external or internal injury,
whether of a minor or a serious nature, caused by a physical
force.” Cockburn, 135 Cal. Rptr. 2d at 814 (quoting CALJIC
No. 9.36) (emphasis added).
We also note that § 273d(a) requires that the defendant
“inflict[]” the punishment or injury “willfully,” see CAL.
PENAL CODE § 273d(a), which requires “a purpose or
willingness to commit the act” in question, see id. § 7(1).
Moreover, as used in both § 273d(a) and § 273.5(a), the
California courts have held that the requirement that the
injury be “willfully inflicted” requires “a direct application
of force by the defendant upon the victim.” People v.
Jackson, 91 Cal. Rptr. 2d 805, 808–09 (Ct. App. 2000)
(applying such a requirement to § 273.5(a) based in part on
[AND]
2. The (punishment/ [and/or] injury) inflicted by the
defendant caused a traumatic physical condition to the
child[.]
See Jud. Council of Cal., Criminal Jury Instructions, No. 822 (2022).
16 OLEA-SEREFINA V. GARLAND
caselaw construing § 273d(a)); see also Laurico-Yeno, 590
F.3d at 821.
In light of this understanding of the elements of
§ 273d(a) as construed by the California courts, we have
little difficulty concluding that a violation of that statute is
categorically a crime of violence under our precedent. As
we have explained above, a violation of § 273d(a) requires
the “willful[]” infliction of an injury “resulting in a traumatic
condition,” i.e., the intentional application of physical force
that causes a “wound or other abnormal bodily condition.”
Stewart, 10 Cal. Rptr. at 219. That brings § 273d(a) squarely
within our holding in Laurico-Yeno that a crime that
“penalizes the intentional use of force that results in a
traumatic condition” is categorically a crime of violence.
590 F.3d at 822; see also Ayala-Nicanor, 659 F.3d at 751(noting that, “in Laurico-Yeno, we turned to the California
courts’ construction of the required element of ‘traumatic’
force to determine that the element satisfied the federal
generic definition of a crime of violence”); Banuelos-Ayon,
611 F.3d at 1086 (reaffirming that § 273.5(a) is a crime of
violence because it “penalizes the intentional use of force
that results in a traumatic condition, and not minimal, non-
violent touchings”); see generally Johnson, 559 U.S. at 140(holding that “crime of violence” requires an element of
actual, attempted, or threatened use of “force capable of
causing physical pain or injury”).
The BIA therefore correctly concluded that Olea’s
conviction under § 273d(a) was a conviction of an
“aggravated felony” and that she was therefore statutorily
ineligible for cancellation of removal.
OLEA-SEREFINA V. GARLAND 17
III
We reject Olea’s remaining challenges to her removal
order.
A
Olea contends that the BIA erred in upholding the IJ’s
denial of a further continuance, which she contends
infringed her right to counsel. “The decision to grant or deny
[a] continuance is within ‘the sound discretion of the [IJ] and
will not be overturned except on a showing of clear abuse.’”
Garcia v. Lynch, 798 F.3d 876, 881 (9th Cir. 2015) (citations
omitted). “When reviewing an IJ’s denial of a continuance,
we consider several factors, including: (1) the nature of the
evidence not obtained or admitted as a result of the denial of
the continuance, (2) the reasonableness of the alien’s
conduct, (3) the inconvenience to the court, and (4) the
number of continuances previously granted.” Id. (citing
Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009)).
Considering the listed factors that are applicable here, we
find no clear abuse of discretion.
The IJ generously afforded Olea eight continuances, to
allow her to locate counsel, to prepare her applications, and
to await the outcome of her U-visa applications. See supra
at 5–8. The fact that, after more than four years, Olea now
claimed to have hired an attorney did not require the IJ to
grant yet another continuance. No appearance had been
entered by any attorney, none was present at the hearing, and
the IJ had specifically warned at the prior hearing that she
would proceed to the merits of Olea’s application for
cancellation of removal at the April 2018 hearing. The IJ
acted well within her discretion in following through with
the proceedings and rendering a decision.
18 OLEA-SEREFINA V. GARLAND
B
The BIA properly rejected Olea’s contentions that the IJ
had violated her due process rights by failing to develop the
record.
We “ordinarily review due process challenges de novo.”
Amaya, 15 F.4th at 986 (citing Vasquez-Zavala v. Ashcroft,
324 F.3d 1105, 1107 (9th Cir. 2003)). “A due process
violation occurs where ‘(1) the proceeding was so
fundamentally unfair that the alien was prevented from
reasonably presenting [her] case, and (2) the alien
demonstrates prejudice, which means that the outcome of the
proceeding may have been affected by the alleged
violation.’” Lacsina Pangilinan v. Holder, 568 F.3d 708,
709 (9th Cir. 2009) (citation omitted). The BIA correctly
concluded that Olea’s due process claim failed at the first of
these two steps.
As the BIA noted, the record confirms that the IJ
adequately explored the possibility of asylum with Olea and
provided her with an application. Indeed, after Olea had
already stated on the record that she had no fear of returning
to Mexico, the IJ specifically revisited the subject of asylum
after realizing that Olea’s conviction might bar her from
obtaining cancellation of removal. The IJ explained what
Olea would have to show to obtain such relief, and she
afforded ample time for Olea to pursue such a claim. Olea
simply failed to do so. See supra at 6–8. 6 The record also
6
We reject Olea’s suggestion that a comment made by the DHS
attorney at one of the hearings should be understood as indicating that
Olea had actually filed an asylum application. In response to a question
about whether the IJ had provided to Olea at the prior hearing either “an
Asylum Application” or a “Cancellation” application, DHS counsel
responded, “[w]e’ve been provided both applications.” Moreover, the
OLEA-SEREFINA V. GARLAND 19
belies Olea’s suggestion that the IJ did not develop a
sufficient factual basis to conclude that Olea had entered the
U.S. unlawfully. After Olea initially denied that she had
entered illegally, the IJ asked more specific questions that
clarified the matter, and Olea admitted that she had entered
unlawfully. Indeed, Olea also expressly admitted in her
application for cancellation of removal that she had entered
unlawfully. Olea has failed to show that the proceedings
were “so fundamentally unfair that [she] was prevented from
reasonably presenting [her] case.” Lacsina Pangilinan, 568
F.3d at 709 (citations omitted).
C
Under INA § 240B(f), we lack “jurisdiction over an
appeal from denial of a request for an order of voluntary
departure.” 8 U.S.C. § 1229c(f). Nonetheless, we retain
jurisdiction to review “constitutional claims or questions of
law.” Id. § 1252(a)(2)(D); see also Corro-Barragan v.
Holder, 718 F.3d 1174, 1177 (9th Cir. 2013). Although
Olea’s brief asserts that her due process and equal protection
rights have been violated, the contention is purely
conclusory and devoid of supporting factual detail or legal
argument. We therefore deem any such claim to be forfeited.
John-Charles v. California, 646 F.3d 1243, 1247 n.4 (9th
Cir. 2011). That leaves only Olea’s assertion that the agency
did not properly weigh the equities in denying voluntary
departure. That, however, is precisely what § 240B(f)
ensuing discussion makes clear that Olea had not completed or filed any
applications at that point, because she was instructed to “come back to
court with [her] applications” at the next hearing.
20 OLEA-SEREFINA V. GARLAND
precludes us from reviewing. We therefore dismiss this
aspect of the petition for lack of jurisdiction.
* * *
The petition for review is DENIED in part and
DISMISSED in part.