Gilma Ruiz Hernandez v. Jefferson Sessions

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 21 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GILMA BEATRIZ RUIZ HERNANDEZ, No. 16-70197
Petitioner, Agency No. A094-201-871
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 15, 2018**
Before: SILVERMAN, BEA, and WATFORD, Circuit Judges.
Gilma Beatriz Ruiz Hernandez, a native and citizen of El Salvador, petitions
for review of the Board of Immigration Appeals’ order dismissing her appeal from
an immigration judge’s removal order denying a continuance. We have jurisdiction
under 8 U.S.C. § 1252. We review for abuse of discretion the agency’s denial of a
*
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).
continuance. Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009). We review de
novo questions of law and constitutional claims. Mohammed v. Gonzales, 400 F.3d
785, 791-92 (9th Cir. 2005). We deny the petition for review.
The agency did not abuse its discretion in denying for lack of good cause
Ruiz Hernandez’s motion for a sixth continuance to await copies of her parents’
alien files from the Department of Homeland Security and adjudication of her visa
petition by U.S. Citizenship and Immigration Services, where Ruiz Hernandez
failed to explain the importance of her parents’ alien files to her own case, and
where she required a waiver to re-adjust her status, and the agency concluded she
would not warrant a favorable exercise of discretion regarding the waiver. See
8 C.F.R. § 1003.29; Ahmed, 569 F.3d at 1012 (outlining factors for the reviewing
court to consider when reviewing the agency’s denial of a continuance, including
the importance of the evidence); Carrillo-Gonzalez v. INS, 353 F.3d 1077, 1079
(9th Cir. 2003) (argument of counsel does not constitute evidence); Malilia v.
Holder, 632 F.3d 598, 606 (9th Cir. 2011) (listing factors the agency should
consider in determining whether to continue proceedings for adjudication of a
pending visa petition).
To the extent Ruiz Hernandez contends the agency erred or violated due
process by not holding a hearing to determine her eligibility for a waiver under
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8 U.S.C. § 1182(h), or otherwise addressing her contention that she is statutorily
eligible, this contention fails where the agency’s discretionary determination was
dispositive. See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004) (courts
and agencies are not required to reach non-dispositive issues); Padilla-Martinez v.
Holder, 770 F.3d 825, 830 (9th Cir. 2014) (“To prevail on a due-process claim, a
petitioner must demonstrate both a violation of rights and prejudice.”)
PETITION FOR REVIEW DENIED.
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