Juan Pacheco-Garcia v. Loretta Lynch ( 2016 )

FILED
NOT FOR PUBLICATION AUG 24 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN PABLO PACHECO-GARCIA, No. 15-71674
Petitioner, Agency No. A205-412-379
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 16, 2016**
Before: O’SCANNLAIN, LEAVY, and CLIFTON, Circuit Judges.
Juan Pablo Pacheco-Garcia, 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”) removal order denying his request for a
continuance. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of
*
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).
discretion the denial of a motion for a continuance, and review de novo questions
of law. Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009). We deny in part
and grant in part the petition for review.
The agency did not abuse its discretion in denying Pacheco-Garcia’s request
for a fourth continuance where he did not demonstrate good cause. See 8 C.F.R.
§ 1003.29; Ahmed, 569 F.3d at 1012 (factors considered in determining whether
the denial of a continuance constitutes an abuse of discretion include the nature of
the evidence excluded as a result of the denial). In addition, the agency’s denial of
a continuance to seek new counsel did not violate Pacheco-Garcia’s right to
counsel, where the IJ had deemed his application for relief abandoned. See Ram v.
Mukasey, 529 F.3d 1238, 1242 (9th Cir. 2008) (an IJ may “determine, in the
absence of a showing of good cause for an additional continuance, that the right to
counsel has been forfeited”); Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000).
We reject Pacheco-Garcia’s contentions that the BIA ignored certain
arguments, failed to provide a reasoned explanation for its actions, and incorrectly
applied the pertinent legal standard. See Najmabadi v. Holder, 597 F.3d 983, 990
(9th Cir. 2010) (“[The BIA] does not have to write an exegesis on every
contention. What is required is merely that it consider the issues raised, and
announce its decision in terms sufficient to enable a reviewing court to perceive
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that it has heard and thought and not merely reacted.” (citation and quotation marks
omitted)); Lata, 204 F.3d at 1246 (requiring error and substantial prejudice to
prevail on a due process claim).
Because the BIA did not address Pacheco-Garcia’s contentions regarding
voluntary departure, we remand for the BIA to consider these contentions in the
first instance. See Montes-Lopez v. Gonzales, 486 F.3d 1163, 1165 (9th Cir. 2007).
Each party shall bear its own costs for this petition for review.
PETITION FOR REVIEW DENIED in part; GRANTED in part;
REMANDED.
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