Javier Contreras-Magana v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION JUL 31 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JAVIER CONTRERAS-MAGANA, No. 11-72939
Petitioner, Agency No. A095-707-582
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 24, 2013 **
Before: ALARCÓN, CLIFTON, and CALLAHAN, Circuit Judges.
Javier Contreras-Magana, a native and citizen of Mexico, petitions for
review of an order of the Board of Immigration Appeals (“BIA”) dismissing his
appeal from a decision of an immigration judge (“IJ”) denying his application for
cancellation of removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
review for abuse of discretion the denial of a continuance and review de novo due
process and equal protection claims. Cruz Rendon v. Holder, 603 F.3d 1104, 1109
(9th Cir. 2010). We deny in part and dismiss in part the petition for review.
The IJ did not abuse his discretion by not continuing Contreras-Magana’s
merits hearing, because Contreras-Magana did not request a continuance of that
hearing, his counsel confirmed that he was prepared to proceed with the case, and
the IJ had granted Contreras-Magana’s request for a 3-month continuance at the
previous hearing. See Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009) (“[A]
denial of a continuance . . . must be evaluated on a case by case basis . . . .”); cf.
United States v. Hernandez-Valenzuela, 932 F.2d 803, 804 (9th Cir. 1991)
(“Appellant cannot now claim that the district court abused its discretion in failing
to grant a continuance that was never requested.”).
The IJ did not violate Contreras-Magana’s right to due process or equal
protection by not continuing the hearing, because Contreras-Magana did not
request a continuance, received a full and fair hearing, and has not demonstrated
that his treatment differed from that of similarly situated persons. See Gutierrez v.
Holder, 662 F.3d 1083, 1090 n.11 (9th Cir. 2011); Hammad v. Holder, 603 F.3d
536, 546 (9th Cir. 2010); Vargas-Hernandez v. Gonzales, 497 F.3d 919, 926-27
(9th Cir. 2007).
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We lack jurisdiction to review the BIA’s discretionary determination that
Contreras-Magana failed to demonstrate the requisite hardship for cancellation of
removal. See Vilchiz-Soto v. Holder, 688 F.3d 642, 644 (9th Cir. 2012) (order).
We also lack jurisdiction to consider Contreras-Magana’s contention that his
case warrants a favorable exercise of prosecutorial discretion. See id.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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