Pedro Garcia-Felix v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 20 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PEDRO GUADALUPE GARCIA-FELIX, No. 16-72921
AKA Pedro Garcia Garcia, AKA Pedro
Guadalupe Garcia, AKA Pedro Garcia Felix, Agency No. A208-362-528
Petitioner,
MEMORANDUM*
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 17, 2021**
Before: SILVERMAN, CHRISTEN, and LEE, Circuit Judges.
Pedro Guadalupe Garcia-Felix, 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”) decision denying his request for a continuance
*
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).
and his applications for cancellation of removal and voluntary departure. We have
jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of
a continuance and review de novo questions of law. Ahmed v. Holder, 569 F.3d
1009, 1012 (9th Cir. 2009). We deny the petition for review.
The agency did not abuse its discretion in denying Garcia-Felix’s request for
a continuance to apply for adjustment of status where he did not demonstrate good
cause. See 8 C.F.R. § 1003.29; Ahmed, 569 F.3d at 1012 (listing factors to be
considered in determining whether the denial of a continuance constitutes an abuse
of discretion); Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1247 (9th Cir. 2008)
(holding that the IJ’s denial of a continuance was not an abuse of discretion where
there was no available relief). The agency properly considered Garcia-Felix to
have not demonstrated prima facie eligibility for adjustment of status where he
failed to meet his burden of proof to establish that his 1995 conviction under
California Health and Safety Code (“CHSC”) § 11351 was not a controlled
substance violation that renders him inadmissible. See 8 U.S.C. §§ 1255(i)(2),
1182(a)(2)(A)(i)(II); Pereida v. Wilkinson, 141 S.Ct. 754, 766 (2021) (an
inconclusive conviction record is insufficient to meet applicant’s burden of proof
to show eligibility for relief).
The agency did not err in concluding that Garcia-Felix failed to establish
that his 1995 conviction under CHSC § 11351 was not a controlled substance
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violation that renders him ineligible for cancellation of removal. See 8 U.S.C. §§
1229b(b), 1182(a)(2)(A)(i)(II); Pereida, 141 S.Ct. at 766. Thus, Garcia-Felix’s
cancellation of removal claim fails.
The agency also did not err in concluding that Garcia-Felix failed to
establish that his 1995 conviction under CHSC § 11351 was not an aggravated
felony that renders him ineligible for voluntary departure. See 8 U.S.C. §§
1229c(b), 1101(a)(43)(B); Pereida, 141 S.Ct. at 766.
Garcia-Felix’s motion to strike non-party filing is granted.
The stay of removal remains in place until issuance of the mandate.
PETITION FOR REVIEW DENIED.
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