Hernandez Duarte v. Holder

FILED
NOT FOR PUBLICATION DEC 01 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
FELISBERTO HERNANDEZ DUARTE, No. 06-71315
Petitioner, Agency No. A075-732-310
v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 6, 2009 **
Pasadena, California
Before: GOULD and BEA, Circuit Judges, and HART, District Judge.***
In 1999, petitioner Felisberto Hernandez Duarte entered the United States
without inspection. In 2000, petitioner applied for asylum and withholding of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed R. App. P. 34(a)(2).
***
The Honorable William T. Hart, District Judge for the Northern
District of Illinois, sitting by designation.
removal. In September 2003, petitioner appeared at a removal hearing and
admitted he was subject to removal. He stated he instead would apply for
cancellation of removal and, alternatively, voluntary departure. In March 2004, he
filed his application for cancellation of removal.
In April 2001, petitioner’s employer had submitted an application for a labor
certification. In July 2001, the California Employment Development Department
sent a letter stating the processing of the labor certification application would be
delayed due to a large volume of pending cases. On December 27, 2004,
petitioner’s new employer submitted a new application for labor certification. On
January 3, 2005, petitioner moved to continue the hearing on his cancellation
application that was set for February 7, 2005. One reason for the continuance was
to allow time for the labor certification application. On January 7, 2005, the
Immigration Judge (“IJ”) denied the motion for a continuance because she would
not allow the case to be pending on her calendar for an expected two or more years
that would be necessary to process the labor certification and any related
adjustment of status. Following the February 2005 hearing, the IJ denied
cancellation of removal on the ground that neither of petitioner’s two United States
citizen children would suffer an exceptional and extremely unusual hardship if they
2
returned to Mexico with petitioner. See 8 U.S.C. § 1229b(b)(1)(D). The Board of
Immigration Appeals (“BIA”) affirmed without opinion.
Petitioner contends the IJ’s determination that he did not satisfy the hardship
requirement was a violation of law in that the IJ did not cumulatively consider the
factors required by BIA precedent. Further, he contends the denial of a
continuance for him to pursue labor certification and an adjustment of status was
both an abuse of discretion and a violation of due process. The government
contends this court is without jurisdiction to consider the merits of cancellation,
specifically whether petitioner satisfied the hardship requirement. The government
also contends that denying a continuance was not an abuse of discretion or due
process violation.
Since the BIA affirmed the IJ’s decision without opinion, the decision of the
IJ is reviewed as the final agency decision. Sandoval-Luna v. Mukasey, 526 F.3d
1243, 1245 (9th Cir. 2008) (per curiam). Questions as to appellate jurisdiction are
reviewed de novo. Id. at 1245-46. Questions of law are reviewed de novo, but “we
defer to the BIA’s interpretation of immigration laws unless the interpretation is
clarly contrary to the plain and sensible meaning of the statute.” Mercado-Zazueta
v. Holder, 580 F.3d 1102, 1104 (9th Cir. 2009) (internal quotation marks omitted).
Claims of due process violations are reviewed de novo. Sandoval-Luna, 526 F.3d
3
at 1246. The IJ’s denial of a continuance is reviewed for abuse of discretion. Id.;
Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009).
An IJ’s discretionary determination that the alien has not satisfied the
hardship requirement for cancellation of removal is not reviewable by this court
except as to colorable questions of law or constitutional claims. Mendez-Castro v.
Mukasey, 552 F.3d 975, 978 (9th Cir. 2009). This court is presumed to lack
jurisdiction to review the IJ’s hardship determination unless petitioner meets his
burden of raising a colorable question of law. Id. It is a question of law whether
the IJ failed to apply a controlling standard governing a legal determination. Id.
at 979. However, arguing that an IJ’s hardship determination is factually
inconsistent with prior agency hardship determinations “is almost necessarily a
subjective question that depends on the identity and the value judgment of the
person or entity examining the issue” and therefore “constitutes an attempt to cloak
an abuse of discretion argument in the garb of a question of law.” Id. at 980
(internal quotation marks and brackets omitted).
Petitioner contends the IJ did not follow the law established by the BIA
because she failed to consider the cumulative effect of all factors in the aggregate.
See Mendez-Castro, 552 F.3d at 980 (citing In re Gonzalez Recinas, 23 I. & N.
Dec. 467, 472 (BIA 2002); In re Monreal-Aguinaga, 23 I. & N. Dec. 56, 64–65
4
(BIA 2001)). But the IJ discussed the alleged hardship factors, many in relation to
each other, and expressly stated she considered all factors cumulatively. She also
cited Monreal and Recinas, both relevant authorities. Thus, no colorable claim of
failure to follow the law is raised, cf. Mendez-Castro, 552 F.3d at 980, and the
hardship claim will be dismissed for want of jurisdiction.
This court has jurisdiction to review the denial of a continuance for abuse of
discretion, as well as for any due process violation. Sandoval-Luna, 526 F.3d
at 1246. Whether there was an abuse of discretion is to be decided on a
case-by-case basis according to the particular facts and circumstances of the case.
Ahmed, 569 F.3d at 1012. Factors to consider in making the determination
include: “(1) the nature of the evidence excluded as a result of the denial of the
continuance, (2) the reasonableness of the immigrant’s conduct, (3) the
inconvenience to the court, and (4) the number of continuances previously
granted.” Id. Recently, in Ahmed, we held there was an abuse of discretion in
denying a continuance while an appeal of a denial of an I-140 visa petition was
pending. Id. at 1012–14.
Here, the IJ likewise abused her discretion in denying a continuance. As in
Ahmed, the denial of a continuance precluded petitioner’s ability to submit
evidence of “vital importance.” Id. at 1012–13. Although the IJ noted there was
5
no guarantee that petitioner would receive labor certification and, in turn, an
adjustment of status, this fact was not dispositive in Ahmed. See id. at 1013
(“[T]here is no guarantee that Ahmed would have been successful in his appeal
[but] the outcome of the appeal was undeniably “important,” and this weighs in
favor of granting the continuance . . . .”). As to the reasonableness of petitioner’s
conduct, we note with some concern that, unlike in Ahmed, petitioner “applied for
labor certification only after removal proceedings were initiated against
[him] . . . .” Id. However, because petitioner’s former employer filed for labor
certification nearly two and a half years before the removal hearing was held, it
does not appear the labor certification application was filed “in an attempt to delay
the [removal] proceedings.” Id. Instead, that application could not be timely
processed by the state agency. As we held in Ahmed, petitioner cannot be faulted
for delays caused by administrative agencies. Id. at 1013. Thus, although
petitioner was not as diligent as the petitioner in Ahmed, petitioner’s conduct was
not unreasonable.
Significantly, other factors favored a continuance in this case. As in Ahmed,
the government did not object to a continuance.
Nor does the record reflect any specific inconvenience to the
administrative court, aside from the IJ’s announcement that
6
she was not keeping this on [her] calendar . . . pending
[petitioner’s labor certification application].
We have repeatedly warned that a myopic insistence
upon expeditiousness will not justify the denial of a
meritorious request for delay, especially where the delay
impairs the petitioner’s statutory rights. An immigrant’s right
to have his or her case heard should not be sacrificed because
of the immigration judge’s heavy caseload.
Id. at 1013–14 (citations and internal quotation marks omitted; emphasis added).
Although she noted a general legislative concern that immigration cases be
resolved expeditiously, the IJ did not cite to any particular inconvenience to the
court. Instead, she pointed only to the possibility of the case remaining on her
calendar for an extended period. Thus, there is nothing to suggest that granting the
continuance would have resulted in a significant inconvenience.
Moreover, this was petitioner’s first request for a continuance. Cf. Ahmed,
569 F.3d at 1014 (“According to the estimate provided by the U.S. Citizenship and
Immigration Service, the processing time for an I-140 appeal may be anywhere
from nine to twenty-two months. . . . While an IJ cannot be expected to continue a
case indefinitely pending appeal, a second continuance would not have been
unreasonable in light of this estimate.”).
7
In light of these factors, it was an abuse of discretion 1 to deny, solely based
on the case pending on the IJ’s calendar, petitioner’s first request for a continuance
to allow time for the processing of his pending labor certification application, the
processing of which had been delayed by the pertinent administrative agencies.
See Ahmed, 569 F.3d at 1012–14. On remand, the IJ shall consider the present
circumstances of petitioner.2
DISMISSED in part, GRANTED in part, and REMANDED.
1
Since it is held that there was an abuse of discretion, it is unnecessary
to consider whether there was a violation of due process.
2
While this case was pending on appeal, it appears petitioner’s labor
certification application and I-140 visa application were approved. See May 20,
2009 Order.
8