Abel Lopez-Serrano v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION AUG 15 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ABEL LOPEZ-SERRANO, No. 11-72296
Petitioner, Agency No. A043-433-249
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 8, 2013**
Pasadena, California
Before: TALLMAN, CLIFTON, and CALLAHAN, Circuit Judges.
Abel Lopez-Serrano (“Lopez”) petitioned this court to review the Board of
Immigration Appeals’ order denying his application for deferral of removal under
the Convention Against Torture. In addition, Lopez alleges he was deprived of a
full and fair hearing because the Immigration Judge unreasonably denied his
*
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).
motion for a continuance to reach his expert witness, exhibited bias, and engaged
in misconduct. We deny the petition for review.1
1. Substantial evidence supports the finding that Lopez is not likely to be
tortured “by or at the instigation of or with the consent or acquiescence of” an El
Salvadorian public official. See 8 C.F.R. § 1208.18(a); Artega v. Mukasey, 511
F.3d 940, 944 (9th Cir. 2007) (“BIA’s findings underlying its determination that an
applicant is not eligible for relief under the CAT are reviewed for substantial
evidence.”). Even if public officials or rival gangs in El Salvador were to
mistakenly view Lopez as a gang member because of his tattoos, there is no
showing that such misidentification would lead to torture. Although willful
blindness may suffice to show government acquiescence, see Aguilar-Ramos v.
Holder, 594 F.3d 701, 705–06 (9th Cir. 2010), the evidence as reviewed by the
BIA, including the Country Reports and Lopez’s own expert’s affidavit,
demonstrates that the government has undertaken an active role against gang
violence.
1
Because the parties are familiar with the facts and procedural history, we
do not restate them here except as necessary to explain our decision.
2
2. The Immigration Judge did not abuse her discretion in denying
Lopez’s motion for a continuance to allow his expert witness to testify.2 To
determine whether an IJ abused her discretion in denying a continuance motion,
this court weighs four factors: (1) the importance of the evidence; (2) the
reasonableness of the defendant’s conduct; (3) the inconvenience to the court; and
(4) the number of previous continuances granted. Karapetyan v. Mukasey, 543
F.3d 1118, 1121 (9th Cir. 2008). All four factors in this case weigh in favor of
denial. The expert’s report was already a part of the record, Lopez should have
ensured that his expert was available, a continuance motion would have
inconvenienced the court, and there had already been three continuances.
3. The Immigration Judge’s comments did not deprive Lopez of the
“opportunity to be heard at a meaningful time and in a meaningful manner.”
Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (internal quotation marks omitted).
Even if the Immigration Judge was sarcastic, sarcasm, like anger, does not
necessarily establish a due process violation. See Liteky v. United States, 510 U.S.
540, 555–56 (9th Cir. 1994). In addition, the record does not demonstrate any
2
Lopez’s motion for the court to take judicial notice of the Los Angeles
Immigration Court operating hours on its website in 2011 is denied. This
information is irrelevant because Lopez does not claim his expert relied on the
court’s operating hours and Lopez’s expert communicated with Lopez’s counsel
after 4:00 p.m.
3
misconduct by the Immigration Judge. The judge’s few questions and comments
did not rise to the level of “unprecedented hostility.” See Garrovillas v. INS, 156
F.3d 1010, 1015–16 (9th Cir. 1998).
The petition for review of the BIA’s order is DENIED.
4