Gerardo Garcia-Castillo v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 7 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GERARDO GARCIA-CASTILLO, No. 20-72495
Petitioner, Agency No. A205-004-862
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 5, 2022**
Seattle, Washington
Before: CLIFTON and BUMATAY, Circuit Judges, and CHEN,*** District Judge.
Gerardo Garcia-Castillo petitions for review from a Board of Immigration
Appeals’ (“BIA”) decision denying his application for cancellation of removal and
*
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 Edward M. Chen, United States District Judge for the
Northern District of California, sitting by designation.
denying his motion for a continuance. We review constitutional claims de novo,
Vargas-Hernandez v. Gonzales, 497 F.3d 919, 921 (9th Cir. 2007), and denials of a
motion for a continuance for abuse of discretion, id. at 923. We have jurisdiction
under 8 U.S.C. § 1252 and deny the petition.
1. The BIA did not violate Garcia-Castillo’s due process rights by denying his
application for cancellation of removal. Garcia-Castillo raises a due process claim
based on the BIA’s alleged failure to consider relevant evidence. And while this
court has held that due process requires a review of “all relevant materials in the
record,” Larita-Martinez v. INS, 220 F.3d 1092, 1095 (9th Cir. 2000), given the
“general[] presum[ption] that the BIA thoroughly considers all relevant evidence in
the record,” Szonyi v. Barr, 942 F.3d 874, 897 (9th Cir. 2019), Garcia-Castillo faces
a steep climb to establish that his due process rights were violated.
Garcia-Castillo fails to overcome the presumption that the BIA considered
“all relevant evidence in the record.” Id. First, Garcia-Castillo fails to identify any
specific evidence in the record that the BIA failed to review. Second, Garcia-
Castillo argues that the BIA violated due process by failing to consider “additional”
evidence concerning hardship to his mother. But this “additional” evidence amounts
to speculation about evidence that he could potentially uncover in the future. Due
process entitles Garcia-Castillo to a review of “relevant materials in the record,”
Larita-Martinez, 220 F.3d at 1095, not an open-ended review of all potential
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evidence, including speculative evidence outside the record. Thus, Garcia-Castillo’s
due process claim fails.
2. The immigration judge (“IJ”) did not abuse his discretion in denying
Garcia-Castillo’s motion for a continuance. The record shows that the IJ adequately
considered the relevant factors in denying Garcia-Castillo’s motion. See An Na Peng
v. Holder, 673 F.3d 1248, 1253 (9th Cir. 2012). First, the IJ explained that Garcia-
Castillo had been in removal proceedings for seven years, giving him “ample time”
to prepare his case and gather evidence. The IJ also noted that Garcia-Castillo’s
motion for a continuance was untimely and filed on the same day of the merits
hearing. These observations go directly towards the reasonableness of Garcia-
Castillo’s conduct and the inconvenience to the court in granting the continuance.
Second, the IJ explained that any potential evidence from Garcia-Castillo’s mother
would not have been material given that the IJ found Garcia-Castillo credible in
testifying about the hardships his mother would face. Thus, the IJ also considered
the “nature of the evidence” that was potentially excluded as a result of the denial.
Id. Lastly, the IJ noted the previous continuances that had been granted in Garcia-
Castillo’s case. In doing so, the IJ directly considered the “number of continuances
previously granted.” Id. Given that the IJ’s analysis addressed each of the relevant
factors, the IJ did not abuse his discretion in denying Garcia-Castillo’s motion for a
continuance.
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DENIED.
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