Andoval Luna v. Mukasey

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIEL SANDOVAL-LUNA, 
Petitioner, No. 04-74825
v.
 Agency No.
A95-310-456
MICHAEL B. MUKASEY, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 11, 2008*
Pasadena, California
Filed May 22, 2008
Before: Alfred T. Goodwin, Betty B. Fletcher, and
N. Randy Smith, Circuit Judges.
Per Curiam Opinion
*This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
5939
SANDOVAL-LUNA v. MUKASEY 5941
COUNSEL
Alma Rose Nieto, Los Angeles, California, for the petitioner.
Joshua E. Braunstein, U.S. Department of Justice, Washing-
ton, D.C., for the respondent.
OPINION
PER CURIAM:
Daniel Sandoval-Luna petitions for review of his removal
proceedings. He contends that the Immigration Judge’s denial
of a continuance constitutes an abuse of discretion and viola-
tion of due process, and that the qualifying relative require-
ment for cancellation of removal, 8 U.S.C. § 1229b(b)(1)(D),
5942 SANDOVAL-LUNA v. MUKASEY
violates his equal protection rights. The government asserts
we have no jurisdiction over Sandoval-Luna’s petition. We
hold that we have jurisdiction, and we deny the petition for
review.
BACKGROUND
The former Immigration and Naturalization Service
charged Daniel Sandoval-Luna with removability under sec-
tion 212(a)(6)(A)(i) of the Immigration and Nationality Act,
8 U.S.C. § 1182(a)(6)(A)(i). On December 18, 2002,
Sandoval-Luna appeared with counsel before an Immigration
Judge (“IJ”) and conceded his removability. The IJ granted a
six-month continuance so counsel could attempt to establish
that Sandoval-Luna was eligible for cancellation of removal.
On June 18, 2003, Sandoval-Luna appeared for the second
time before the IJ. He admitted that he was not eligible for
cancellation of removal because he lacked a qualifying rela-
tive under 8 U.S.C. § 1229b(b)(1)(D). Sandoval-Luna’s coun-
sel asked for another continuance to allow time for the release
of new regulations under the Child Status Protection Act
(“CSPA”), hoping to assert that Sandoval-Luna was eligible
for adjustment of status as a derivative beneficiary of his
father’s labor certification application. The CSPA regulations
had not been released at the time of the hearing, and the labor
certification application had not been processed. The IJ
denied the request for a further continuance.
After the denial, the IJ entered an oral decision in which he
pretermitted Sandoval-Luna’s application for cancellation of
removal and granted sixty days for voluntary departure. The
Board of Immigration Appeals (“BIA”) affirmed the IJ’s deci-
sion without opinion. This petition for review followed.
STANDARD OF REVIEW
When the BIA affirms the IJ’s decision without opinion, we
review the IJ’s decision as the final agency action. Khup v.
SANDOVAL-LUNA v. MUKASEY 5943
Ashcroft, 376 F.3d 898, 902 (9th Cir. 2004) (citing Kebede v.
Ashcroft, 366 F.3d 808, 809 (9th Cir. 2004)). We review
questions concerning our jurisdiction de novo. Sandoval-Lua
v. Gonzales, 499 F.3d 1121, 1126 (9th Cir. 2007) (citing
Andersen v. United States, 298 F.3d 804, 807 n.2 (9th Cir.
2002)). An IJ’s denial of a motion for continuance is reviewed
for an abuse of discretion. Nakamoto v. Ashcroft, 363 F.3d
874, 883 n.6 (9th Cir. 2004) (citing Baires v. INS, 856 F.2d
89, 91 (9th Cir. 1988)). We review de novo claims of equal
protection and due process violations in removal proceedings.
Chavez-Perez v. Ashcroft, 386 F.3d 1284, 1287 (9th Cir.
2004) (citing Kankamalage v. INS, 335 F.3d 858, 861 (9th
Cir. 2003)) (equal protection); Khup, 376 F.3d at 902 (citing
Ramirez-Alejandre v. Ashcroft, 320 F.3d 858, 869 (9th Cir.
2003) (en banc)) (due process).
DISCUSSION
A. Jurisdiction
The government contends that we lack jurisdiction to
review the IJ’s discretionary decision to deny Sandoval-
Luna’s motion for a continuance. Under 8 U.S.C.
§ 1252(a)(2)(B)(ii),“no court shall have jurisdiction to review
. . . any other decision or action of the Attorney General . . .
the authority for which is specified under this subchapter to
be in the discretion of the Attorney General . . . .” The gov-
ernment argues that the quoted language strips this court of
jurisdiction over Sandoval-Luna’s petition for review. We dis-
agree.
[1] First, we have statutory jurisdiction over Sandoval-
Luna’s due process and equal protection claims. Under 8
U.S.C. § 1252(a)(2)(D), as amended by the REAL ID Act of
2005, “[n]othing in . . . this chapter (other than this section)
which limits or eliminates judicial review, shall be construed
as precluding review of constitutional claims or questions of
law raised upon a petition for review . . . .” This provision
5944 SANDOVAL-LUNA v. MUKASEY
restores judicial review of constitutional claims presented in
petitions for review. See Sandoval-Lua, 499 F.3d at 1126; see
also Fernandez-Ruiz v. Gonzales, 410 F.3d 585, 587 (9th Cir.
2005), adopted by 466 F.3d 1121, 1124 (9th Cir. 2006) (en
banc).
[2] Second, we also have jurisdiction over Sandoval-Luna’s
claim that the IJ abused his discretion by denying the motion
for a continuance. Most circuits have held that 8 U.S.C.
§ 1252(a)(2)(B)(ii) does not strip jurisdiction over petitions
challenging an IJ’s discretionary denial of a continuance, even
absent constitutional claims. See Alsamhouri v. Gonzales, 484
F.3d 117, 121-22 (1st Cir. 2007) (citing cases from other cir-
cuit courts addressing the same issue). The plain language of
the statute precludes judicial review only for actions “speci-
fied under this subchapter to be in the discretion of the Attor-
ney General . . . .” 8 U.S.C. § 1252(a)(2)(B)(ii) (emphasis
added). Analyzing this language in the context of an IJ’s dis-
cretionary denial of a continuance, the First Circuit con-
cluded:
An immigration judge’s authority to continue a case
is not “specified under” the subchapter to be in the
discretion of the Attorney General. Instead, the grant
of discretion is contained in 8 C.F.R. § 1003.29 and
related regulations. . . . Indeed, the relevant statutory
provisions do not mention continuances, let alone
indicate that the granting or denial of continuances
by an IJ is “in the discretion of the Attorney Gener-
al.” Therefore, an immigration judge’s discretionary
decision to deny a continuance is not covered by the
jurisdictional bar in 8 U.S.C. § 1252(a)(2)(B)(ii).
Alsamhouri, 484 F.3d at 122.
[3] This analysis is persuasive. We stated a similar rationale
to explain our jurisdiction over an IJ’s discretionary denial of
a motion to reopen. See Medina-Morales v. Ashcroft, 371
SANDOVAL-LUNA v. MUKASEY 5945
F.3d 520, 528-29 (9th Cir. 2004). We now hold that we have
jurisdiction to review an IJ’s discretionary denial of a continu-
ance. This type of review is not barred by 8 U.S.C. § 1252(a)
(2)(B)(ii). We therefore have jurisdiction over Sandoval-
Luna’s petition for review. It does not follow, however, that
he prevails.
B. Abuse of Discretion
[4] Sandoval-Luna contends that the IJ erred by not grant-
ing a continuance to allow for the release of regulations under
the CSPA and the adjudication of his father’s labor certifica-
tion application. We disagree. “The decision to grant or deny
a continuance is in the sound discretion of the judge and will
not be overturned except on a showing of clear abuse.” De la
Cruz v. INS, 951 F.2d 226, 229 (9th Cir. 1991) (citing Rios-
Berrios v. INS, 776 F.2d 859, 862 (9th Cir. 1985)). Here, the
IJ had already granted Sandoval-Luna a six-month continu-
ance. Even assuming that Sandoval-Luna would have been
eligible as a dependent under his father’s labor certification
application, that application had not been approved at the time
of the hearing and no relief was then immediately available.
C. Due Process
[5] Sandoval-Luna also argues that the IJ’s denial of a con-
tinuance violated his due process rights because future CSPA
regulations may, some day, allow him to adjust his status
under his father’s labor certification application. We reject
this argument because Sandoval-Luna does not have a cogni-
zable liberty interest in discretionary relief from removal. See
Tovar-Landin v. Ashcroft, 361 F.3d 1164, 1167 (9th Cir.
2004) (citing Munoz v. Ashcroft, 339 F.3d 950, 954 (9th Cir.
2003)). Sandoval-Luna also has not established that he was
prejudiced by the denial of a continuance because nothing in
the record shows that he was eligible for adjustment of status
or any other relief from removal. See Vargas-Hernandez v.
5946 SANDOVAL-LUNA v. MUKASEY
Gonzales, 497 F.3d 919, 926 (9th Cir. 2007) (citing Campos-
Sanchez v. INS, 164 F.3d 448, 450 (9th Cir. 1999)).
D. Equal Protection
[6] Finally, Sandoval-Luna contends that the qualifying rel-
ative requirement for cancellation of removal, 8 U.S.C.
§ 1229b(b)(1)(D), violates his equal protection rights because
Congress is treating similarly situated aliens differently. He is
wrong. “[F]ederal authority in the areas of immigration and
naturalization is plenary.” Mendoza v. INS, 16 F.3d 335, 338
(9th Cir. 1994) (quoting Sudomir v. McMahon, 767 F.2d
1456, 1464 (9th Cir. 1985)). “Federal classifications distin-
guishing among groups of aliens thus are valid unless ‘wholly
irrational.’ ” Garberding v. INS, 30 F.3d 1187, 1190 (9th Cir.
1994) (quoting Sudomir, 767 F.2d at 1464). The statutory lim-
itation on cancellation of removal for aliens without qualify-
ing relatives meets the standard for rational basis review. See
United States v. Barajas-Guillen, 632 F.2d 749, 752 (9th Cir.
1980).
PETITION DENIED.