Artemio Vasquez Peralta v. Eric Holder, Jr.

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT APR 23 2014

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

ARTEMIO VASQUEZ PERALTA, No. 12-71171
CIRIA VIVAR REYES,
Agency Nos. A077-233-916
Petitioners, A099-367-431

v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted April 16, 2014**

Before: GOULD, BERZON, and BYBEE, Circuit Judges.

Artemio Vasquez Peralta and Ciria Vivar Reyes, natives and citizens of

Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”) order

dismissing their appeal from an immigration judge’s (“IJ”) decision denying

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
their request for a continuance and denying their applications 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. Cui v.

Mukasey, 538 F.3d 1289, 1290 (9th Cir. 2008). With respect to Vasquez Peralta’s

claims, we deny the petition. With respect to Vivar Reyes’ claims, we grant the

petition and remand her claim for cancellation.

The agency did not abuse its discretion or violate Vasquez Peralta’s statutory

right to counsel in denying his request for a continuance, where he had conceded

that he was not eligible for any form of relief. See Sandoval-Luna v. Mukasey, 526

F.3d 1243, 1247 (9th Cir. 2008) (denial of a motion to continue was not an abuse

of discretion where relief was not immediately available to petitioner). It follows

that Vasquez Peralta’s due process claim fails. See Lata v. INS, 204 F.3d 1241,

1246 (9th Cir. 2000) (requiring error to prevail on a due process claim).

The agency did, however, abuse its discretion in denying Vivar Reyes’

request for a continuance to allow her to obtain new counsel. The IJ scheduled two

hearings for the purpose of allowing Vivar Reyes’ United States citizen children to

testify in support of her cancellation claim. Vivar Reyes’ former attorney failed to

appear at either hearing. He also failed to submit affidavits for the children by the

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date specified, even though the IJ had stated that such submission was a

prerequisite to hearing the children’s testimony.

At the time the IJ refused to continue to an October 28th hearing, however,

he knew that Vivar Reyes’s counsel Royles was not performing his legal duties on

the day he was supposed to submit the children’s affidavits. The IJ failed to

identify the correct legal rule, which holds that a petitioner is entitled to a

continuance to obtain counsel where the denial of the right to counsel potentially

affects the outcome of the proceedings. Hernandez-Gil v. Gonzales, 476 F.3d 803,

807 (9th Cir. 2007).

The IJ therefore improperly denied an additional continuance to allow Vivar

Reyes to obtain new counsel and offer additional testimony, as had originally been

contemplated. CF. Baires v. I.N.S., 856 F.2d 89, 92 (9th Cir. 1988) (denial of

alien’s request for a continuance and change of venue constituted an abuse of

discretion and denied alien his statutory right to present evidence on his behalf).

Accordingly, we remand to the BIA with the instruction to remand for further

proceedings before the IJ in accordance with this disposition.

In light of our remand, we need not reach Vivar Reyes’ remaining

contentions.

Each party shall bear its own costs for this petition for review.

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PETITION FOR REVIEW DENIED in part; GRANTED in part and

remanded.