Angel Calixto Hernandez v. William Barr

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 23 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANGEL CALIXTO HERNANDEZ, AKA No. 18-70025
Angel Calixto, AKA Angel Hernandez,
Agency No. A200-947-926
Petitioner,
v. MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 21, 2019**
Before: THOMAS, Chief Judge, FRIEDLAND and BENNETT, Circuit Judges.
Angel Calixto Hernandez, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ order dismissing his appeal from an
immigration judge’s (“IJ”) decision denying his motion for a continuance and
denying cancellation of removal. We have jurisdiction under 8 U.S.C. § 1252. We
review for substantial evidence the agency’s continuous physical presence
*
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).
determination. Gutierrez v. Mukasey, 521 F.3d 1114, 1116 (9th Cir. 2008). We
review for abuse of discretion the agency’s denial of a continuance. Ahmed v.
Holder, 569 F.3d 1009, 1012 (9th Cir. 2009). We review de novo due process
claims. Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000). We deny the petition
for review.
Substantial evidence supports the agency’s determination that Calixto
Hernandez failed to present sufficient testimonial and documentary evidence to
establish the requisite continuous physical presence for cancellation of removal.
See 8 U.S.C. §§ 1229a(c)(4)(B), 1229b(b)(1)(A), 1229b(d)(2).
The agency did not abuse its discretion or violate due process in denying for
lack of good cause Calixto Hernandez’s motion for a continuance, where Calixto
Hernandez has not explained what testimony or evidence he might have presented
had the continuance been granted. See 8 C.F.R. §§ 1003.29, 1003.31(c); Ahmed,
569 F.3d at 1012 (factors considered in determining whether the denial of a
continuance constitutes an abuse of discretion include the nature of the evidence
excluded); Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error and
substantial prejudice to prevail on a due process claim).
To the extent Calixto Hernandez contends the agency found him not
credible, the record does not support this.
PETITION FOR REVIEW DENIED.
2 18-70025