Bernice Sanchez v. Merrick Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 20 2023
FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
BERNICE TAPIA SANCHEZ, aka Berenice No. 21-70341
Tapia Sanchez,
Agency No. A206-272-588
Petitioner,
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 10, 2023**
Pasadena, California
Before: KLEINFELD and COLLINS, Circuit Judges.***
Berenice Tapia Sanchez, a citizen of Mexico, petitions for review of a
decision by the Board of Immigration Appeals (“BIA”) affirming the decision of
an Immigration Judge (“IJ”) ordering that she be removed to Mexico if she did not
voluntarily depart within a specified period. We have jurisdiction under § 242 of
the Immigration and Nationality Act. See 8 U.S.C. § 1252. We deny the petition.
*
This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concluded that this case is suitable for decision without
oral argument. See FED. R. APP. P. 34(a)(2)(C).
***
This matter is decided unanimously by a quorum of the panel. See 28 U.S.C.
§ 46(d); Ninth Cir. Gen. Order 3.2(h).
1. The BIA properly upheld the IJ’s denial of Sanchez’s motion for a
continuance of her removal proceedings and the IJ’s conclusion that Sanchez had
thereby abandoned any application for cancellation of removal.
An alien must establish good cause for any requested continuance of
removal proceedings. See 8 C.F.R. § 1003.29. “The decision to grant or deny a
continuance is in the sound discretion of the [IJ] and will not be overturned except
on a showing of clear abuse.” Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1247
(9th Cir. 2008) (citation omitted). “When reviewing an IJ’s denial of a
continuance, we consider a number of factors, including: (1) the nature of the
evidence excluded as a result of the denial of the continuance, (2) the
reasonableness of the immigrant’s conduct, (3) the inconvenience to the court, and
(4) the number of continuances previously granted.” Ahmed v. Holder, 569 F.3d
1009, 1012 (9th Cir. 2009). Sanchez has failed to establish a clear abuse of
discretion in the denial of her requested continuance.
At a hearing in July 2017, Sanchez appeared with counsel before the IJ, and
a Spanish-language interpreter contemporaneously translated the proceedings for
her. The IJ orally set a deadline of February 23, 2018 to file any applications for
relief, with a merits hearing on April 23, 2018. The deadlines were also set down
in a written “Record of Master Calendar Pre-Trial Appearance and Order,” which
was signed by Sanchez and her counsel. This written notice reiterated the
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February 23, 2018 deadline for submitting any applications for relief and
specifically warned that “Failure to timely file the aforementioned documents will
result in the conclusion that such applications are abandoned.”
On November 6, 2017, Sanchez’s counsel filed a written motion to
withdraw, explaining that there had been a “total lack of communication and
cooperation from [Sanchez] and her family” and that Sanchez had “not fulfilled her
obligation with respect to the fee agreement.” He attached copies of two letters
that he had written to Sanchez in Spanish (one with an accompanying English
translation), and the letters were addressed to Sanchez’s correct home address that
she later used on subsequent filings in this matter. The first was an October 17
letter, in which counsel explained that he had been trying to reach Sanchez without
success; that her application for cancellation of removal was due on February 23,
2018; and that it was urgent that she communicate with him in order to prepare the
necessary documents. The second was a November 1 letter stating that, because
Sanchez had not responded to his repeated requests to reach her, counsel would be
filing an application to withdraw. The letter stated that, “By law I am required to
remind you that by February 23, 2018 you must file all relief applications and
documents in support thereof.” Counsel’s motion to withdraw was granted on
November 21, 2017. The IJ’s order stated that Sanchez “is encouraged to find
substitute counsel,” but that “The application(s) for relief must be filed by
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February 23, 2018, with or without new counsel.” Sanchez has not contended that
she did not receive this order.
Sanchez did not file anything with the immigration court until April 13,
2018, when her new counsel filed his appearance in the case, together with a
motion for a continuance and a request for records from the court. As “good
cause” for the requested continuance, the motion stated only that Sanchez’s prior
counsel had withdrawn in November 2017; that new counsel “was retained only on
March 28, 2018”; and that new counsel needed more time to review the case,
gather evidence and documents, and prepare an “application for immigration
relief.” No additional details were provided, and there was no supporting
declaration from either the new counsel or from Sanchez.
On this record, the IJ did not abuse his discretion in concluding that
Sanchez’s motion “does not establish good cause.” No explanation—much less a
justification—was presented for Sanchez’s failure to cooperate with her first
counsel, her failure to file any applications by the deadline, and her failure to
secure new counsel sooner. Given the barebones nature of Sanchez’s motion, the
record supports the conclusion that her behavior in failing to meet the deadline—
especially after repeated warnings—was simply unreasonable. Sanchez does not
argue, beyond making largely conclusory assertions, that the IJ failed to take into
account other considerations that might have weighed in favor of a continuance.
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And given Sanchez’s unjustified failure to comply with the court’s deadlines, the IJ
properly treated any application for cancellation of removal as having been
abandoned. See 8 C.F.R. § 1003.31(c) (2021).
The BIA properly concluded that the additional arguments made by Sanchez
on appeal did not warrant a different result. The BIA appropriately held that
Sanchez’s conclusory complaints about her counsel in her brief on appeal failed to
establish ineffective assistance and that Sanchez had failed to comply with the
procedural requirements of Matter of Lozada, 19 I & N Dec. 637 (BIA 1988). See
Al Ramahi v. Holder, 725 F.3d 1133, 1138–39 (9th Cir. 2013). And given the clear
written warning in the Record of Master Calendar Pre-Trial Appearance and Order
of the consequences of failing to file a timely application, and the repeated
warnings Sanchez had received concerning the need to comply with the deadline,
the BIA correctly rejected Sanchez’s claim that the proceedings violated her due
process rights. The proceedings were not fundamentally unfair and did not deny
Sanchez the opportunity to reasonably present her case. See Colmenar v. INS, 210
F.3d 967, 971 (9th Cir. 2000).
2. Sanchez’s argument that the agency lacked jurisdiction over her removal
proceedings because her Notice to Appear lacked location, time, and date
information is foreclosed by this court’s decision in United States v. Bastide-
Hernandez, 39 F.4th 1187, 1188, 1191–92 (9th Cir. 2022) (en banc).
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Petition DENIED.
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