Francisco Noriega-Bejarano v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
FEB 18 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FRANCISCO ANTONIO NORIEGA- No. 19-72943
BEJARANO, AKA Francisco Antonio
Bejarano, AKA Antonio Rodriguez- Agency No. A205-931-030
Huerta, AKA Antonio Rodriguez-Vuelta,
Petitioner, MEMORANDUM*
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 16, 2022**
San Francisco, California
Before: SILER,*** S.R. THOMAS, and CALLAHAN, Circuit Judges.
*
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 Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
Francisco Noriega-Bejarano, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an Immigration Judge’s (“IJ”) denial of his application for cancellation of
removal and his motion for a continuance. We have jurisdiction pursuant to 8
U.S.C. § 1252.
We review de novo jurisdictional issues and claims of legal or constitutional
error. Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1245 (9th Cir. 2008) (per
curiam). We review for abuse of discretion the denial of a continuance. Id. at
1246. Where, as here, the BIA has conducted a de novo review of the IJ’s
decision, we review the BIA’s decision and any of the IJ’s reasoning that the BIA
has incorporated as its own. Aguilar-Ramos v. Holder, 594 F.3d 701, 704 (9th Cir.
2010). We dismiss in part and deny in part the petition for review.
I
We lack jurisdiction to review Noriega-Bejarano’s various challenges to the
agency’s discretionary determination that his removal would not result in the
requisite hardship to his qualifying family members. See Vilchiz-Soto v. Holder,
688 F.3d 642, 644 (9th Cir. 2012); 8 U.S.C. §§ 1229b(b)(1), 1252(a)(2)(B)(i).
Most of Noriega-Bejarano’s contentions are simply “an attempt to ‘cloak[] an
abuse of discretion argument’ in the garb of a question of law.” Mendez-Castro v.
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Mukasey, 552 F.3d 975, 980 (9th Cir. 2009) (alteration in original) (quoting
Torres-Aguilar v. INS, 246 F.3d 1267, 1271 (9th Cir. 2001)). Insofar as Noriega-
Bejarano challenges the legal standard applied by the agency, we lack jurisdiction
over this argument because it is not colorable: The IJ and the BIA cited and
applied the relevant legal standards in assessing hardship in the aggregate, “which
is all our review requires.” Id.; see also Vilchiz-Soto, 688 F.3d at 644 (explaining
we retain jurisdiction to review only “colorable legal or constitutional claim[s]”).
II
The BIA did not abuse its discretion by affirming the IJ’s decision that
Noriega-Bejarano lacked good cause for a continuance, where Noriega-Bejarano
had already been granted several lengthy continuances, the government opposed
the latest request, and Noriega-Bejarano has never been able to identify with any
specificity what additional evidence might have been introduced had the
continuance been granted. See Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir.
2009) (listing considerations relevant to the “good cause” inquiry); see also Hui
Ran Mu v. Barr, 936 F.3d 929, 936 (9th Cir. 2019) (excusing the agency’s failure
to expressly address the “good cause” factors listed in Ahmed where the agency’s
reasoning was otherwise adequate). Consequently, the denial of the continuance
also did not violate Noriega-Bejarano’s constitutional right to due process. See
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Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (holding that a petitioner must
show error and substantial prejudice to prevail on a due process claim).
III
Although Noriega-Bejarano has not properly raised his claims of ineffective
assistance of counsel to the BIA, the BIA order’s sua sponte discussion of
ineffective assistance at the IJ proceedings was enough to vest us with jurisdiction
over that portion of his claims. See Parada v. Sessions, 902 F.3d 901, 914 (9th
Cir. 2018) (“It is well-established that we may review any issue addressed on the
merits by the BIA, regardless of whether the petitioner raised it before the
agency.”). Nonetheless, we deny his claim on the merits because we agree with the
BIA that Noriega-Bejarano has not adequately shown how he was prejudiced by
his former attorney’s conduct during the IJ proceedings. See Iturribarria v. INS,
321 F.3d 889, 901–02 (9th Cir. 2003). To the extent that Noriega-Bejarano’s
petition asserts other discrete claims of ineffective assistance of counsel that the
BIA’s decision did not address and which he has not yet raised before the agency,
we dismiss them for lack of jurisdiction. See Ontiveros-Lopez v. INS, 213 F.3d
1121, 1124 (9th Cir. 2000).
PETITION DISMISSED in part, DENIED in part.
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