Luis Pleitez-Lopez v. William Barr
935 F.3d 716
| 9th Cir. | 2019Background
- Pleitez-Lopez, a Guatemalan national, entered the U.S. in 2002 and was placed in removal proceedings in 2012; he applied for cancellation of removal and conceded removability.
- He provided DHS fingerprints in December 2013; the IJ later reset a merits hearing to May 2015 and instructed him to re-submit DHS fingerprints 60 days before that hearing, warning abandonment if he failed to comply. The government provided written fingerprint instructions.
- Petitioner’s attorney (after the IJ’s instruction) erroneously told him DHS fingerprints remained valid for 18 months and that he did not need to update them; Petitioner also submitted fingerprints to the California DOJ and believed the requirement was satisfied.
- At the May 2015 hearing Petitioner lacked updated DHS fingerprints; counsel requested a brief continuance to obtain them, which the IJ denied and then deemed Petitioner’s relief applications abandoned, granting voluntary departure.
- The BIA affirmed, reasoning Petitioner lacked good cause because he had been properly advised by the IJ of the fingerprint requirement and consequences of noncompliance. Pleitez-Lopez petitioned for review in the Ninth Circuit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether IJ abused discretion by denying a continuance to update DHS fingerprints | Pleitez-Lopez argued reliance on counsel’s erroneous, post-instruction advice was reasonable and constituted good cause for a continuance under 8 C.F.R. §1003.29 | Government argued petitioner was unreasonable because the IJ had explicitly instructed him and warned of abandonment; denying continuance was proper | Court granted petition: denial was an abuse of discretion because BIA failed to apply all Cui factors and unreasonableness finding was arbitrary; continuance should have been granted or case remanded |
| Whether petitioner’s reliance on counsel can constitute "good cause" | Counsel’s advice created an exceptional circumstance beyond petitioner’s control making reliance reasonable | Government contended IJ instructions controlled and petitioner should have followed the court, not counsel | Court held reliance on counsel can constitute good cause, especially where counsel’s advice post-dated IJ instruction and given attorney’s special role for noncitizens |
| Whether Cui v. Mukasey factors were applied correctly by BIA/IJ | Petitioner argued BIA ignored or misapplied several Cui factors (importance of evidence, inconvenience, prior continuances) | BIA focused mainly on unreasonableness and IJ’s admonitions | Court held BIA failed to analyze all Cui factors (importance, inconvenience, number of prior continuances) and misapplied the unreasonableness factor |
| Whether the government would be prejudiced by a brief continuance | Petitioner argued minimal court inconvenience and no government objection to a continuance; offered conditional relief procedure used in Cui | Government argued fingerprint absence burdens its ability to prepare | Court found inconvenience minimal and noted options (tentative grant conditioned on fingerprint results or hearing on results) making prejudice speculative |
Key Cases Cited
- Cui v. Mukasey, 538 F.3d 1289 (9th Cir. 2008) (denying short continuance to resubmit fingerprints is abuse of discretion; sets four-factor test)
- Monjaraz-Munoz v. INS, 327 F.3d 892 (9th Cir. 2003) (attorney error can constitute an exceptional circumstance excusing noncompliance)
- Hernandez-Velasquez v. Holder, 611 F.3d 1073 (9th Cir. 2010) (BIA abuses discretion when it makes legal errors)
- Avagyan v. Holder, 646 F.3d 672 (9th Cir. 2011) (BIA decision is an abuse of discretion if arbitrary or irrational)
- Malilia v. Holder, 632 F.3d 598 (9th Cir. 2011) (standard: denial of continuance reviewed for abuse of discretion)