MORENO v. GARLAND (2021)

United States Court of Appeals, Ninth Circuit.2021-09-17No. No. 16-72075

Summary · law.co

Holding. The petition for review is denied. The immigration judge did not abuse discretion in denying the continuance motion, and the agency correctly determined that the conviction barred eligibility for cancellation of removal.

Ramon Moreno Hurtado, a Mexican citizen, sought court review of immigration proceedings in which an immigration judge denied his request for a delay in his hearing and rejected his application to cancel his removal order. The immigration judge found that Moreno Hurtado had nearly eight months' notice to gather court documents related to a criminal conviction but failed to do so and offered no justification for the delay. Additionally, the judge determined that Moreno Hurtado's conviction under California drug possession law disqualified him from obtaining cancellation of removal because he could not prove the conviction involved something other than a controlled substance.

The court examined whether the immigration judge abused discretion in refusing the continuance and whether the decision on his cancellation application was legally sound. Finding no abuse of discretion regarding the continuance denial and no legal error in the conviction analysis, the court rejected Moreno Hurtado's challenge to the removal proceedings.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether denial of a continuance was an abuse of discretion where the applicant had eight months' notice to obtain required documents but failed to do so
Whether a California drug possession conviction renders an applicant ineligible for cancellation of removal
Whether an inconclusive conviction record satisfies the burden of proof for demonstrating eligibility for removal relief

Procedural posture

The case reached the court of appeals as a petition for review of a Board of Immigration Appeals decision affirming an immigration judge's denial of a continuance and rejection of a cancellation of removal application.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Ramon Moreno Hurtado, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judges decision denying his motion for a continuance and his application for cancellation of removal. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a continuance and review de novo questions of law. Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009). We deny the petition for review.

The agency did not abuse its discretion or violate Moreno Hurtados right to due process in denying Moreno Hurtados motion for a continuance, where there was no evidence of mental incompetency, and where Moreno Hurtado failed to obtain relevant conviction documents prior to his hearing despite being on notice for over eight months that the documents were required, and Moreno Hurtado provided no explanation for not obtaining them. See id. at 1012 (listing factors the court considers when reviewing the denial of a continuance); Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error to prevail on a due process claim).

The agency did not err in determining that Moreno Hurtado failed to establish that his conviction under California Health & Safety Code § 11350(a) is not a controlled substance violation that renders him ineligible for cancellation of removal. See 8 U.S.C. §§ 1182(a)(2)(A)(i)(II), 1229b(b)(1)(C); Pereida v. Wilkinson, ––– U.S. ––––, 141 S. Ct. 754, 766, 209 L.Ed.2d 47 (2021) (an inconclusive conviction record is insufficient to meet applicants burden of proof to show eligibility for relief); Lazo v. Wilkinson, 989 F.3d 705, 714 (9th Cir. 2021) (holding California Health & Safety Code § 11350 is divisible with regard to substance).

Moreno Hurtados request for oral argument, raised in his opening brief, is denied.

The temporary stay of removal remains in place until issuance of the mandate.

PETITION FOR REVIEW DENIED.