Orquidia Hernandez-Garcia v. Robert Wilkinson ( 2021 )

FILED
NOT FOR PUBLICATION
MAR 3 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ORQUIDIA TAMARA HERNANDEZ- No. 19-70030
GARCIA,
Agency No. A216-274-404
Petitioner,
v. MEMORANDUM*
ROBERT M. WILKINSON, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 1, 2021**
Pasadena, California
Before: KLEINFELD, HIGGINSON,*** and OWENS, 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 Stephen A. Higginson, United States Circuit Judge for
the U.S. Court of Appeals for the Fifth Circuit, sitting by designation.
Orquidia Tamara Hernandez-Garcia claims she was denied a full and fair
hearing before the Immigration Judge because he interrupted her answers to
questions, he did not allow parties to make a closing argument, and he failed to
assist her in developing her case on the record. The Immigration Judge acted
appropriately. Far from harming Hernandez-Garcia, the Immigration Judge’s
questions and interjections were designed to help get to the root issues of her
claims. Therefore, the Immigration Judge was responsive to the particular
circumstances of the case, and Hernandez-Garcia’s due process rights were not
violated. See Hussain v. Rosen, 985 F.3d 634, 643–45 (9th Cir. 2021).
Hernandez-Garcia further argues that the Board erred in finding that she did
not establish good cause for a continuance in her case. The decision to grant a
continuance is generally within the sound discretion of the Immigration Judge. See
Gonzalez v. INS, 82 F.3d 903, 908 (9th Cir. 1996). The Immigration Judge was
well within his discretion to deny the continuance because Hernandez-Garcia had
previously been given a continuance, had several months to obtain counsel, and
had previously told the Immigration Judge that she had decided to proceed pro se
for her merits hearing. See Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009)
(noting relevant factors in evaluating a denial of a continuance include the
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reasonableness of the immigrant’s conduct and the inconvenience to the court).
Hernandez-Garcia has not pointed to any factor weighing in favor of granting a
continuance. See id.Next, Hernandez-Garcia claims that the Board erred in holding that her
social group, “family of my son,” was not cognizable. The record does not compel
a conclusion contrary to the Board’s determinations that Hernandez-Garcia failed
to show that her proposed social group had particularity and that the harm to her
was motivated by animus towards her proposed social group. See Reyes v. Lynch,
842 F.3d 1125, 1135 (9th Cir. 2016); Matter of L-E-A-, 27 I. & N. Dec. 40, 45
(B.I.A. 2017) (affirmed in part and overruled in part by Matter of L-E-A-, 27 I. &
N. Dec. 581 (2019)). Thus, her asylum and withholding of removal claims
necessarily fail.
Finally, substantial evidence supports the Board’s denial of relief under the
Convention Against Torture because Hernandez-Garcia has not shown that she was
the victim of past torture, or that she could not relocate within Guatemala. See 8
C.F.R. §§ 1208.16(c)(3), 1208.18(a)(1).
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The petition for review is DENIED.
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