Ruben Hernandez-Hernandez v. Merrick Garland ( 2022 )

FILED
NOT FOR PUBLICATION
JUN 10 2022
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RUBEN HERNANDEZ-HERNANDEZ, No. 19-70078
Petitioner, Agency No. A205-316-086
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 6, 2022**
Portland, Oregon
Before: EBEL,*** W. FLETCHER, and CLIFTON, Circuit Judges.
Ruben Hernandez-Hernandez petitions for review of the decision of the
Board of Immigration Appeals (“BIA”) dismissing his appeal from his final order
*
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).
***
The Honorable David M. Ebel, United States Circuit Judge for the
U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
of removal to Mexico. The Immigration Judge (“IJ”) denied him a thirteenth
continuance to file an application for asylum, withholding of removal, and
protection under the Convention Against Torture (“CAT”). Hernandez-Hernandez
argues (1) that the IJ abused his discretion in denying him a continuance and (2)
that the denial of the continuance violated his right to due process. We have
jurisdiction under 8 U.S.C. § 1252 and we deny the petition for review.
1. We review a denial of a continuance for abuse of discretion. Cruz
Rendon v. Holder, 603 F.3d 1104, 1109 (9th Cir. 2010). The agency denied a
thirteenth continuance after more than four years of immigration proceedings.
During the proceedings, the IJ granted Hernandez-Hernandez twelve continuances
to apply for a U-Visa and appeal from the denial of his application, and through
counsel, he repeatedly waived any other form of relief from removal. The record
demonstrates that both the IJ and the BIA conducted an individualized review of
his request for a continuance. Cf. Ahmed v. Holder, 569 F.3d 1009, 1014 (9th Cir.
2009) (holding that an IJ’s failure to make any inquiry into whether good cause for
a continuance exists is an abuse of discretion); Pleitez-Lopez v. Barr, 935 F.3d 716,
719 (9th Cir. 2019) (holding that the BIA’s failure to rationally analyze the
individual factors favoring a continuance is an abuse of discretion). Under the
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factors set forth in Cui v. Mukasey, 538 F.3d 1289, 1292 (9th Cir. 2008), the denial
of a thirteenth continuance was not an abuse of discretion.
2. We review de novo claims of due process violations in removal
proceedings. Oshodi v. Holder, 729 F.3d 883, 889 (9th Cir. 2013) (en banc). To
prevail on a due process claim, the petitioner must demonstrate that the challenged
proceeding “was so fundamentally unfair that the alien was prevented from
reasonably presenting his case” and that the alleged violation potentially altered the
outcome of the proceedings. Cruz Rendon, 603 F.3d at 1109 (citing Colmenar v.
INS, 210 F.3d 967, 971 (9th Cir. 2000)). Hernandez-Hernandez fails to satisfy
both requirements.
Hernandez-Hernandez had ample opportunities over the course of his
removal proceedings to apply for asylum, withholding, and CAT protection, but he
repeatedly waived seeking those forms of relief. It was only after the IJ denied him
a thirteenth continuance, after the appeal of his U-Visa application denial had been
rejected, that he asserted changed circumstances and requested an opportunity to
file an I-589 application for asylum, withholding, and CAT protection. Given this
lengthy procedural history and Hernandez-Hernandez’s legal representation
throughout, the IJ’s denial of the continuance and leave to file a belated I-589
application does not rise to the level of being “so fundamentally unfair” as to
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violate Hernandez-Hernandez’s constitutional right to due process. See id. His
attorneys’ multiple waivers are binding on Hernandez-Hernandez because they
were strategic, and he has not shown any egregious circumstances that would
relieve him of their effect.1 See Santiago-Rodriguez v. Holder, 657 F.3d 820,
831–32 (9th Cir. 2011).
PETITION DENIED.
1
To the extent that Hernanez-Hernandez seeks review of a claim of
ineffective assistance of counsel, we lack jurisdiction to reach it due to his failure
to raise it before the BIA. See Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir.
2009) (en banc) (per curiam).
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