Silva v. Holder ( 2011 )

FILED
NOT FOR PUBLICATION
MAR 01 2011
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U .S . C O U R T O F A P P E A L S
FOR THE NINTH CIRCUIT
ARNOLDO SILVA, No. 06-72409
Petitioner, Agency No. A092-249-042
v. MEMORANDUM *
ERIC H. HOLDER JR., Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 16, 2011
Pasadena, California
Before: KLEINFELD, LUCERO, ** and GRABER, Circuit Judges.
Arnoldo Silva petitions for review of the decision of the Board of
Immigration Appeals affirming the dismissal of his application for
cancellation of removal. W e assume the parties’ familiarity with the facts
and procedural history of this case, and discuss them only as necessary to
*
This disposition is not appropriate for publication and is not
precedent except as provided by 9th Cir. R. 36-3.
**
The Honorable Carlos F. Lucero, United States Circuit Judge
for the Tenth Circuit, sitting by designation.
explain our decision. W e review the decision of the immigration judge
(“IJ”) to deny Silva’s request for continuance for abuse of discretion, see
Nakamoto v. Ashcroft, 363 F.3d 874, 883 n.6 (9th Cir. 2004), and questions
of law de novo, see Baballah v. Ashcroft, 367 F.3d 1067, 1073 (9th Cir.
2004).
W e conclude that the IJ did not violate Silva’s right to counsel by
denying yet another continuance, after obtaining many previous
continuances, to obtain an attorney. “In order for an [immigration]
applicant to appear pro se, there must be a knowing and voluntary waiver of
the right to counsel.” Hernandez-Gil v. Gonzales, 476 F.3d 803, 806 (9th
Cir. 2007) (internal quotation marks omitted). In the face of an applicant’s
gross inaction, however, waiver may be inferred in limited circumstances.
See Vides-Vides v. INS, 783 F.2d 1463, 1470 (9th Cir. 1986); see also
United States v. Moriel-Luna, 585 F.3d 1191, 1201 (9th Cir. 2009). At
Silva’s penultimate hearing, after the IJ had already granted many previous
continuances, the IJ warned:
[I]f you have a problem with [your attorney], you and he
are not getting together or things are not working out, you
better come see me right away. Or you go get a new
attorney, whatever you want to do. But sir, I’m not going
to grant you a continuance again if at the last minute you
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and your attorney fail to prepare your case and you have
done nothing about it.
(Emphasis added.) Silva’s refusal to cooperate with his retained counsel
after such an explicit instruction was an implied waiver of his statutory and
constitutional rights to counsel.
Further, the IJ did not abuse his discretion by denying a continuance
for Silva to be fingerprinted. Unlike the applicants in Cui v. M ukasey, 538
F.3d 1289 (9th Cir. 2008), and Karapetyan v. M ukasey, 543 F.3d 1118 (9th
Cir. 2008), superseded by statute on other grounds as recognized in Owino
v. Holder, 575 F.3d 956, 958 (9th Cir. 2009) (per curiam), Silva was told
several times of the fingerprint requirement, responded that he understood
the requirement, was given a deadline for complying, and was told of the
consequences of failing to do so.
Silva’s petition for review is DENIED.
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