Xin He v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 22 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
XIN BIAO HE, No. 21-70488
Petitioner, Agency No. A215-825-306
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 10, 2022**
Pasadena, California
Before: WARDLAW and HURWITZ, Circuit Judges, and MOLLOY,*** District
Judge.
Xin Biao He, a native and citizen of China, petitions for review of a decision
of the Board of Immigration Appeals (“BIA”) dismissing his appeal from an order
*
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).
***
The Honorable Donald W. Molloy, United States District Judge for
the District of Montana, sitting by designation.
of an Immigration Judge (“IJ”) denying a fourth continuance of his removal
hearing and finding his application for asylum, withholding of removal, and
protection under the Convention Against Torture (“CAT”) abandoned. We have
jurisdiction under 8 U.S.C. § 1252 and grant the petition.
The IJ abused his discretion in concluding that He had abandoned his claims
for relief. See Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1247 (9th Cir. 2008).
He made multiple attempts to obtain counsel, and at one point He obtained counsel
who subsequently withdrew. At the time that He sought a fourth continuance, He
testified that he was working with the Justice Department’s Legal Orientation
Program to complete his asylum application and was advised that he should defer
filing an asylum application until he could obtain a transcript of his credible fear
interview. The IJ abused his discretion in concluding that He abandoned the
application on this record, when it is clear that He was diligently preparing the
application with the limited resources available to him. Because He’s application
would have been based on the same claims that led to the asylum officer’s credible
fear determination, providing important evidence to support He’s claims for relief,
the IJ should have granted a reasonable continuance. See Ahmed v. Holder, 569
F.3d 1009, 1012 (9th Cir. 2009) (stating that an IJ should consider “the nature of
the evidence excluded as a result of the denial of the continuance” in evaluating a
continuance request).
2
PETITION GRANTED.
3