SERGIO ARRIETA V. MERRICK GARLAND

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 28 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SERGIO ARRIETA VELA, No. 20-71420
Petitioner, Agency No. A206-909-904
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 5, 2022**
Pasadena, California
Before: KELLY,*** IKUTA, and CHRISTEN, Circuit Judges.
Sergio Arrieta Vela petitions for review of a Board of Immigration Appeals
(BIA) order dismissing his appeal of an immigration judge’s (IJ) decision denying
*
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 Paul J. Kelly, Jr., United States Circuit Judge for the
U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
his motion to continue proceedings and his application for cancellation of removal.
Our jurisdiction is governed by 8 U.S.C. § 1252.
The BIA did not err in upholding the IJ’s discretionary denial of Petitioner’s
motion to continue as Petitioner did not meet his burden to show “good cause” to
delay the filing deadline under the relevant regulations. See 8 C.F.R. § 1003.29.
Petitioner waited until the day of the merits hearing to request additional time and
could not offer a persuasive rationale explaining why he could not have obtained
the requisite documentation in the preceding months, let alone provide the court
notice, before the hearing date. AR 83; Matter of Sibrun, 18 I. & N. Dec. 354,
356–57 (BIA 1983). Likewise, the record fails to demonstrate a conceivable
benefit to awaiting further resolution of Petitioner’s criminal case in state court.
See AR 130; Matter of L-A-B-R-, 27 I. & N. Dec. 405, 413, 419 (A.G. 2018).
Petitioner’s due process claim fails for a similar reason. Petitioner cannot show
that the IJ’s denial of a continuance resulted in prejudice because even if his
pending criminal charges were eventually dropped and the 2017 I-213 was
excluded as a result, other evidence in the record was sufficient to support the
charge of removability. See AR 130, 197–98; INS v. Lopez-Mendoza, 468 US.
1032, 1043 (1984) (“[R]egardless of how the arrest is effected, deportation will
still be possible when evidence not derived directly from the arrest is sufficient to
support deportation.”).
2
We lack jurisdiction to review the agency’s dispositive judgment that
Petitioner failed to demonstrate his daughter would face “exceptional and
extremely unusual hardship” upon his removal. 8 U.S.C. § 1229b(b)(1)(D). Our
caselaw dictating this result has long coexisted with the principle that “questions of
law,” reviewable under 8 U.S.C. § 1252 (a)(2)(D), “extend[] to questions involving
the application of [a legal standard] to undisputed facts,” Ramadan v. Gonzales,
479 F.3d 646, 650 (9th Cir. 2007), as recently articulated by the Supreme Court in
Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1067 (2020). See Romero-Torres v.
Ashcroft, 327 F.3d 887, 891 (9th Cir. 2003) (“whether an alien has demonstrated
the requisite hardship” is a discretionary question outside our purview).
Petitioner’s claim that the IJ misapplied the legal standard is a de facto abuse of
discretion argument cast as a question of law and does not persuade that we have
jurisdiction over the agency’s determination that the facts did not demonstrate a
potential for hardship beyond that which would ordinarily result from the removal
of a parent. See 8 U.S.C. § 1252(a)(2)(B)(i).
Although the agency’s order could be upheld on that ground alone,
Petitioner’s claim that Pereira v. Sessions, 138 S. Ct. 2105 (2018), and Niz-Chavez
v. Garland, 141 S. Ct. 1474 (2021), invalidate the IJ’s good moral character
determination for lack of an effective Notice to Appear also fails as a matter of
law. Pereira and Niz-Chavez involved the parameters of the 10-year period
3
relevant to the continuous presence requirement under 8 U.S.C. § 1229b(b)(1)(A).
Petitioner contends that the rationale of these cases applies equally to the 10-year
period relevant to the good moral character determination, but a close reading of
the caselaw reveals otherwise. Though 8 U.S.C. § 1229b indicates a textual
relation between provisions (b)(1)(A) (continuous presence) and (b)(1)(B) (good
moral character), this court has approvingly cited the BIA’s decision, In re Ortega-
Cabrera, 23 I. & N. Dec. 793 (BIA 2005), for the proposition that the 10-year
period for good moral character is not coextensive with the continuous presence
period and is measured backward from the date of final adjudication. See Castillo-
Cruz v. Holder, 581 F.3d 1154, 1162 (9th Cir. 2009) (citing In re Ortega-Cabrera,
23 I. & N. Dec. at 797). Thus, although some tension may exist, Pereira and Niz-
Chavez are not irreconcilable with In re Ortega-Cabrera and our circuit precedent
in Castillo-Cruz because they do not expressly address the period pertaining to
good moral character. Under Patel v. Garland, 142 S. Ct. 1614, 1619 (2022), our
review is limited to this legal question, and we deny the petition on this alternative
basis as well.
All pending motions are denied.
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
4