Ruben Hernandez-Hernandez v. Merrick Garland
52 F.4th 757
| 9th Cir. | 2022Background
- Petitioner Ruben Hernandez-Hernandez faced a final order of removal to Mexico after more than four years of immigration proceedings.
- The IJ denied a thirteenth continuance to allow him to file an I-589 (asylum, withholding, and CAT) application; the BIA affirmed.
- During the proceedings the IJ had previously granted twelve continuances to pursue a U-Visa and appeals from its denial.
- Through counsel, Hernandez-Hernandez repeatedly waived seeking relief other than the U-Visa until after his U-Visa appeal failed.
- The IJ and BIA conducted individualized reviews of the continuance request; petitioner argued the denial was an abuse of discretion and violated due process.
- The Ninth Circuit denied the petition for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether denial of a thirteenth continuance was an abuse of discretion | IJ abused discretion by denying continuance to file asylum/withholding/CAT | IJ and BIA reasonably considered factors (Cui) after long proceedings and prior 12 continuances; petitioner delayed | Denial was not an abuse of discretion |
| Whether denial violated due process | Denial was fundamentally unfair and prevented reasonable presentation of asylum/withholding/CAT claims | Petitioner had ample opportunities, repeatedly waived relief through counsel, and only sought belated relief after U-Visa appeal failed | Due process claim fails |
| Whether court may reach ineffective-assistance-of-counsel claim | Petitioner sought review of counsel's conduct | Claim was not raised before the BIA | Court lacks jurisdiction to consider ineffective-assistance claim |
Key Cases Cited
- Cruz Rendon v. Holder, 603 F.3d 1104 (9th Cir. 2010) (standard for reviewing continuance denials for abuse of discretion)
- Cui v. Mukasey, 538 F.3d 1289 (9th Cir. 2008) (factors to evaluate continuance requests)
- Ahmed v. Holder, 569 F.3d 1009 (9th Cir. 2009) (IJ must inquire into good cause for continuance)
- Pleitez-Lopez v. Barr, 935 F.3d 716 (9th Cir. 2019) (BIA must rationally analyze factors favoring a continuance)
- Oshodi v. Holder, 729 F.3d 883 (9th Cir. 2013) (de novo review of due process claims in removal proceedings)
- Colmenar v. INS, 210 F.3d 967 (9th Cir. 2000) (due process standard: ability to reasonably present case)
- Santiago-Rodriguez v. Holder, 657 F.3d 820 (9th Cir. 2011) (attorney waivers can bind respondent absent egregious circumstances)
- Abebe v. Mukasey, 554 F.3d 1203 (9th Cir. 2009) (exhaustion requirement: failure to raise claim before BIA deprives court of jurisdiction)