Paola Cortez Cuevas v. Merrick Garland ( 2023 )

FILED
NOT FOR PUBLICATION
FEB 28 2023
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAOLA CORTEZ CUEVAS, No. 20-72456
Petitioner, Agency No. A208-117-672
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 17, 2023**
Pasadena, California
Before: TASHIMA, HURWITZ, and BADE, Circuit Judges.
Paola Cortez Cuevas, a native and citizen of Mexico, petitions for review of
the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an
immigration judge’s (“IJ”) decision denying her request for a continuance and
ordering her removed. We have jurisdiction under 8 U.S.C. § 1252. We review
* 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)(C).
for abuse of discretion the denial of a continuance. Ahmed v. Holder, 569 F.3d
1009, 1012 (9th Cir. 2009). We review de novo questions of law and claims of due
process violations in immigration proceedings, Lopez-Urenda v. Ashcroft, 345 F.3d
788, 791 (9th Cir. 2003), and whether a petitioner’s statutory right to counsel was
violated, Mendoza-Mazariegos v. Mukasey, 509 F.3d 1074, 1079 (9th Cir. 2007).
We deny the petition for review.
1. The agency did not abuse its discretion in denying Cortez Cuevas’
request for a further continuance because she did not demonstrate good cause. See
8 C.F.R. § 1003.29; Ahmed, 569 F.3d at 1012 (listing factors to be considered in
determining whether the denial of a continuance constitutes an abuse of discretion).
“Although the BIA did not expressly address the Ahmed factors, the IJ sufficiently
outlined why good cause [for a continuance] did not exist.” Hui Ran Mu v. Barr,
936 F.3d 929, 936 (9th Cir. 2019). Cortez Cuevas’ contention that the agency
erred by failing to assess factors specific to her adjustment-of-status application
fails because she failed to provide evidence of a pending application like “copies of
relevant submissions in the collateral proceeding [and] supporting affidavits.”
Matter of L-A-B-R-, 27 I. & N. Dec. 405, 418 (A.G. 2018).
2. The BIA did not err in concluding that the IJ did not violate Cortez
Cuevas’ right to due process by proceeding in the absence of a waiver of counsel
and by failing to inform her of possible adjustment of status relief. “When a
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petitioner does not waive the right to counsel, IJs must provide . . . reasonable time
to locate counsel and permit counsel to prepare for the hearing.” Arrey v. Barr,
916 F.3d 1149, 1158 (9th Cir. 2019) (internal quotation marks and citation
omitted). The IJ repeatedly gave Cortez Cuevas notice of the right to counsel
during the three-year proceedings and provided her with a list of legal service
providers.
Cortez Cuevas also contends that she was denied due process because the IJ
did not discuss a family-sponsored visa with her prior to her final hearing on July
17, 2018. But no such duty was triggered because her daughter was younger than
twenty-one before the final hearing, making her too young to sponsor Cortez
Cuevas for a family-based visa. See 8 U.S.C. § 1151(b)(2)(A)(i). IJs need not
“speculate about the possibility of anticipated changes of circumstances.” United
States v. Moriel-Luna, 585 F.3d 1191, 1197 (9th Cir. 2009). Moreover, Cortez
Cuevas was already aware of her potential eligibility so there was no prejudice
from the IJ’s asserted failure to inform. See Lata v. INS, 204 F.3d 1241, 1246 (9th
Cir. 2000).
3. Cortez Cuevas’ contention that the IJ lacked jurisdiction over her
proceedings is foreclosed by United States v. Bastide-Hernandez, 39 F.4th
1187, 1188, 1193 (9th Cir. 2022) (en banc) (holding that lack of hearing
information in notice to appear does not deprive immigration court of subject
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matter jurisdiction, and 8 C.F.R. § 1003.14(a) is satisfied when later notice
provides hearing information).
The temporary stay of removal remains in place until the mandate issues.
PETITION FOR REVIEW DENIED.
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