Klever Pilataxi Tenemaza v. Attorney General United States, 17-1502

Petitioner Klever Armando Pilataxi Tenemaza, an Ecuadorian national, conceded removability and applied for cancellation of removal based on his U.S. citizen son suffering "exceptional and extremely unusual" hardship.
Merits hearing was set for March 3, 2014; IJ instructed counsel to file the bulk of evidence roughly one year in advance and to supplement as needed.
Petitioner sought a continuance at the merits hearing to obtain evidence he claimed was inaccessible earlier due to a restraining order and alleged lack of cooperation from his wife; he had counsel and did not request a continuance earlier.
The IJ denied the continuance and denied the cancellation application; the BIA affirmed both decisions, finding lack of due diligence and that petitioner failed to show the additional evidence would be probative, noncumulative, and significantly favorable or that he suffered prejudice.
Petitioner filed a petition for review and a stay; the Third Circuit dismissed the challenge to the hardship determination for lack of jurisdiction and reviewed the continuance denial for abuse of discretion and due process.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Jurisdiction over hardship determination	Pilataxi contends BIA erred in finding no "exceptional and extremely unusual" hardship	Government argues hardship determination is discretionary and not reviewable	Court: Dismissed review of hardship determination for lack of jurisdiction
Denial of continuance — abuse of discretion	Petitioner argues denial deprived him of ability to present evidence; agency abused discretion by refusing a short continuance	Government/BIA argue petitioner lacked due diligence and provided no specifics about additional evidence or prejudice	Court: No abuse of discretion; BIA properly found lack of diligence and no showing of probative, noncumulative, significantly favorable evidence
Denial of continuance — due process violation	Petitioner claims Fifth Amendment due process violated by being denied opportunity to present evidence	Government contends petitioner failed to show substantial prejudice or deprivation of fair hearing	Court: Due process claim fails — petitioner did not demonstrate substantial prejudice
Request for injunctive/declaratory relief	Petitioner included injunctive/declaratory relief claims in filing	Government moved to dismiss as these claims are tied to nonreviewable discretionary decision	Court: Dismissed these claims along with hardship review

Patel v. Attorney General, 619 F.3d 230 (3d Cir. 2010) (courts lack jurisdiction to review discretionary §1229b hardship determinations)
Mendez-Moranchel v. Ashcroft, 338 F.3d 176 (3d Cir. 2003) (discussing limits on judicial review of discretionary immigration relief)
Jarbough v. Attorney General, 483 F.3d 184 (3d Cir. 2007) (disagreed-with weighing of evidence does not present a legal or constitutional claim)
Singh v. Gonzales, 432 F.3d 533 (3d Cir. 2006) (to prevail on due process claim in removal proceedings, alien must show substantial prejudice)
Chong v. Dist. Dir., INS, 264 F.3d 378 (3d Cir. 2001) (aliens entitled to full and fair hearing and reasonable opportunity to present evidence)
Khan v. Attorney General, 448 F.3d 226 (3d Cir. 2006) (jurisdiction exists to review continuance rulings in immigration context)
Syblis v. Attorney General, 763 F.3d 348 (3d Cir. 2014) (standard of review for continuance denials is abuse of discretion)
Ponce-Leiva v. Ashcroft, 331 F.3d 369 (3d Cir. 2003) (framework for reviewing denial of continuance)