Victor Diaz-Cortez v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION OCT 10 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
VICTOR DIAZ-CORTEZ, AKA Victor No. 11-73721
Diaz Cortez, AKA Victor Diaz-Cortezz,
Agency No. A200-876-999
Petitioner,
v. MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 6, 2014**
Seattle, Washington
Before: PAEZ, BYBEE, and CALLAHAN, Circuit Judges.
Petitioner-Appellant Victor Diaz-Cortez (“Diaz-Cortez”) petitions for review
of the Board of Immigration Appeals’s (“BIA’s”) dismissal of his appeal of the
Immigration Judge’s (“IJ’s”) decision denying his request for a sixth continuance,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
finding him removable, and denying his applications for cancellation of removal.
Diaz-Cortez requests that the court remand his case to the IJ for consideration of
ameliorative relief as set forth in the Federal First Offender Act (“FFOA”). We
deny the petition for review.1
This court reviews an IJ’s discretionary denial of a continuance for abuse of
discretion. Peng v. Holder, 673 F.3d 1248, 1253 (9th Cir. 2012). Questions of law
are reviewed de novo. Barragan-Lopez v. Holder, 705 F.3d 1112, 1114 (9th Cir.
2013); see also Flores-Lopez v. Holder, 685 F.3d 857, 861 (9th Cir. 2012).
Pursuant to 8 C.F.R. § 1003.29, an IJ, at her discretion, may grant a
continuance upon the showing of good cause. Cui v. Mukasey, 538 F.3d 1289,
1292 (9th Cir. 2008). In reviewing an IJ’s denial of a motion for continuance, the
court considers a variety of factors, including the number of prior continuances and
the inconvenience to the court. Id. Here, considering the totality of the
circumstances, the IJ did not abuse her discretion in denying Diaz-Cortez’s request
for a sixth continuance.
Moreover, Diaz-Cortez’s underlying arguments do not merit remand. First,
Diaz-Cortez sought a continuance to allow him to collaterally attack his state
1
Because the parties are familiar with the facts and procedural history, we
do not restate them here except as necessary to explain our decision.
2
controlled substance conviction under Padilla v. Kentucky, 559 U.S. 356 (2010).
He did not seek a continuance based on the FFOA. “Failure to raise an issue in an
appeal to the BIA constitutes a failure to exhaust remedies with respect to that
question and deprives this court of jurisdiction to hear the matter.” Rashtabadi v.
I.N.S., 23 F.3d 1562, 1567 (9th Cir. 1994); see also 8 U.S.C. § 1252(d)(1).
Second, nothing in the record shows that Diaz-Cortez filed any action attacking his
state conviction under Padilla or the FFOA. Third, our decision in Lujan-
Armendariz v. I.N.S., 222 F.3d 728 (9th Cir. 2000), only applies to state
convictions for simple drug possession entered prior to July 14, 2011 that have
been expunged under a state rehabilitative statute satisfying the requirements of the
FFOA. Nunez-Reyes v. Holder, 646 F.3d 684, 694 (9th Cir. 2011) (en banc); 18
U.S.C. § 3607; see also Chavez-Perez v. Ashcroft, 386 F.3d 1284, 1291 (9th Cir.
2004). There is no record evidence that Diaz-Cortez’s conviction has been
expunged or that a similar applicable state rehabilitative statute exists.
Diaz-Cortez’s conviction renders him ineligible for cancellation of removal
under 8 U.S.C. § 1229b(b)(1).
The petition is DENIED.
3