FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
URIEL GARCIA, No. 12-70778
Petitioner,
Agency No.
v. A092-058-021
LORETTA E. LYNCH, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submission Deferred January 9, 2015
Submitted August 11, 2015*
Pasadena, California
Filed August 18, 2015
Before: Kim McLane Wardlaw, William A. Fletcher,
and John B. Owens, Circuit Judges.
Opinion by Judge W. Fletcher
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 GARCIA V. LYNCH
SUMMARY**
Immigration
The panel denied Uriel Garcia Macedo’s petition for
review of the Board of Immigration Appeals’ affirmance of
an immigration judge’s denial of his motion for a
continuance.
The panel held that the statutory criminal bar, 8 U.S.C.
§ 1252(a)(2)(C), does not strip this court of jurisdiction to
review the denial of a procedural motion that rests on a
ground independent of the conviction that triggered the bar.
The panel denied Garcia’s petition for review on the merits,
holding that the IJ did not abuse discretion in denying the
motion to continue.
COUNSEL
Zulu Ali, Riverside, California, for Petitioner.
Stuart F. Delery, Principal Deputy Assistant Attorney
General, Linda S. Wernery, Assistant Director, and Lindsay
B. Glauner, Trial Attorney, United States Department of
Justice, Civil Division, Office of Immigration Litigation,
Washington, D.C., for Respondent.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
GARCIA V. LYNCH 3
OPINION
W. FLETCHER, Circuit Judge:
Uriel Garcia Macedo petitions for review of an order of
the Board of Immigration Appeals (“BIA”) affirming the
immigration judge (“IJ”)’s denial of his motion for a
continuance. We must determine whether 8 U.S.C.
§ 1252(a)(2)(C) precludes us from exercising jurisdiction.
We conclude that § 1252(a)(2)(C) does not bar review of the
denial of procedural motions that are independent of the
merits of the removal order. We further hold, however, that
the IJ did not abuse his discretion in denying Garcia’s motion
for a continuance. We therefore deny Garcia’s petition for
review.
I. Background
Garcia is a 46-year-old Mexican national who first
entered the United States with his parents in or around 1979,
when he was nine years old. Although the record is not
entirely clear, it appears that Garcia was granted some form
of immigration status either upon entry or shortly thereafter.
In 2006, Garcia was charged with some form of drug crime,
but applied for, and obtained, cancellation of removal.
In 2010, Garcia was charged with possessing
methamphetamine in violation of § 11377(a) of the California
Health and Safety Code, a misdemeanor. He was
simultaneously charged with possessing drug paraphernalia.
He entered pleas of nolo contendere to both offenses, and was
sentenced to a one-year probation term. Garcia was placed
into a drug diversion program established by California’s
Proposition 36, under which adults convicted of nonviolent
4 GARCIA V. LYNCH
drug-related offenses can receive probation and drug
treatment rather than prison sentences. See Cal. Penal Code
§§ 1210, 1210.1, 3063.1. Under Proposition 36, a person
who successfully completes treatment can ask that his
conviction be expunged. Id. § 1210.1(e).
Garcia, however, did not complete the treatment program.
He failed to appear at his first check-in, in March 2010, and
his probation was terminated. On January 10, 2011, Garcia
again appeared in court, his probation was restored, and he
was re-entered in the drug treatment program. One week
later, however, he was served with an arrest warrant and a
Notice to Appear (“NTA”). In February, having been
notified that Garcia was in the custody of U.S. Immigration
and Customs Enforcement (“ICE”), the state court ordered his
probation and treatment terminated and imposed a sentence
of 48 days for time served.
Garcia was placed in immigration proceedings in January
2011 based on the NTA. He was charged as removable
because of his 2010 conviction, which ICE argued was for
violating a “law . . . relating to a controlled substance.”
8 U.S.C. § 1227(a)(2)(B)(i). At an early appearance before
the IJ, the government had not yet produced the documents of
conviction. Garcia, who was represented by counsel, denied
the allegations and the charge. When Garcia next appeared
before the IJ in early August 2011, he explained that he was
no longer represented by his prior counsel. The IJ granted a
continuance to allow him to seek a new attorney.
Garcia appeared at a second hearing the following week.
He stated that he would proceed without counsel, and he
discussed with the IJ the possibility of applying for asylum,
withholding of removal, or adjustment of status. The IJ
GARCIA V. LYNCH 5
continued the proceedings a second time, encouraging Garcia
to seek counsel. Garcia was still without counsel when he
appeared for a third hearing in late August. Rather than admit
the allegations, Garcia invoked his right to take ten days to
review the conviction documents, apparently in order either
to procure or locate documents that would demonstrate his
2010 conviction had been expunged, or to attempt to expunge
it. He told the IJ that he had sent “some dismissal
applications to the [state court], where [he] was quote,
unquote convicted.”
Garcia appeared at a fourth hearing on September 12,
having failed to secure postconviction relief. He admitted
that he had been convicted of possession of a controlled
substance, and the IJ sustained the charge of removability.
The IJ asked if he feared persecution or torture in Mexico.
Garcia said he did not. The IJ explained that Garcia was
ineligible for cancellation of removal because he had
previously been granted cancellation in 2006. He further
explained that Garcia was ineligible to apply for adjustment
of status because no waiver was available for his drug
offense. He stated that Garcia could apply for voluntary
departure.
Garcia requested a continuance to give him time for
further attempts to expunge his conviction. The IJ denied the
request, stating that Garcia had been in immigration
proceedings for over six months and that Garcia had been
given “ample time” to pursue postconviction relief. Garcia
stated that he wanted to apply for voluntary departure, but the
IJ explained that the immigration statutes did not permit him
to do so unless he waived appeal. Garcia refused to waive his
appeal rights. The IJ rendered an oral decision finding him
removable as charged and denying voluntary departure.
6 GARCIA V. LYNCH
Garcia appealed to the BIA, arguing only that the IJ had
erred in denying a further continuance so that he could seek
postconviction relief. The BIA dismissed the appeal on the
ground that the IJ had “appropriately considered the relevant
factors to determine whether good cause for a continuance
was shown.” It held that because Garcia had not yet shown
that the conviction had been vacated, the IJ did not err in
refusing a further continuance. Garcia petitions for review,
arguing only that the BIA had erred in affirming the IJ’s
denial of a further continuance.
II. Jurisdiction
We must first determine whether we have jurisdiction to
review the denial of a motion to continue when the movant
has been convicted of a qualifying criminal offense under
8 U.S.C. § 1252(a)(2)(C) and a removal order has been
entered on that basis. We conclude that the immigration
statutes do not bar judicial review of the denial of such a
motion.
Our jurisdiction over petitions for review of final orders
of removal rests on 8 U.S.C. § 1252. That statutory provision
imposes three limitations on our review. First, it bars judicial
review of removal orders entered after the “expedited
removal” process set out at 8 U.S.C. § 1225(a)(1). See
8 U.S.C. § 1252(a)(2)(A). Second, it bars judicial review of
certain denials of discretionary relief, including, inter alia,
“any . . . decision or action of the Attorney General or the
Secretary of Homeland Security the authority for which is
specified under this subchapter to be in the discretion of the
Attorney General or the Secretary of Homeland Security.”
Id. § 1252(a)(2)(B); see Kucana v. Holder, 558 U.S. 233,
251–52 (2010). Finally, it bars judicial review over removal
GARCIA V. LYNCH 7
orders predicated upon certain criminal offenses. 8 U.S.C.
§ 1252(a)(2)(C). The last two bars do not preclude “review
of constitutional claims or questions of law.” Id.
§ 1252(a)(2)(D).
The question in this case is whether any of these statutory
limitations bars our review of the denial of Garcia’s motion
for a continuance.
It is well established in this circuit that the second bar,
over certain denials of discretionary relief, does not apply to
a motion for a continuance. In Sandoval-Luna v. Mukasey,
526 F.3d 1243 (9th Cir. 2008) (per curiam), we held that
because the denial of a continuance was neither specifically
enumerated at 8 U.S.C. § 1252(a)(2)(B) nor “‘specified
under’ the subchapter to be in the discretion of the Attorney
General,” the limitation in § 1252(a)(2)(B) does not bar our
review over the denial of a motion for a continuance. Id. at
1246 (quoting Alsamhouri v. Gonzales, 484 F.3d 117, 122
(1st Cir. 2007)). In Kucana, the Supreme Court affirmed this
interpretation of § 1252(a)(2)(B). See Kucana, 558 U.S. at
247 (holding that § 1252(a)(2)(B) bars review of a
discretionary decision “only when Congress itself set out the
Attorney General’s discretionary authority in the statute”).
The government argues, however, that the third bar, set
out at 8 U.S.C. § 1252(a)(2)(C), strips us of jurisdiction to
review the denial of a motion to continue when the movant
has been convicted of a qualifying crime, as Garcia has been.
Section 1252(a)(2)(C) states that “no court shall have
jurisdiction to review any final order of removal against an
alien who is removable by reason of having committed”
certain crimes. 8 U.S.C. § 1252(a)(2)(C). The crimes
referenced by the statute include any crimes that would
8 GARCIA V. LYNCH
render a noncitizen inadmissible into the United States,
including crimes involving moral turpitude, see id.
§ 1182(a)(2), and many crimes that would render a noncitizen
removable, including aggravated felonies, see id.
§ 1227(a)(2)(A)(iii). As relevant here, an alien who is
removable by reason of having been convicted of violating a
law “relating to a controlled substance” is subject to the
§ 1252(a)(2)(C) bar. See id. § 1227(a)(2)(B).
There is no dispute that Garcia has been convicted of
violating a law relating to a controlled substance. Garcia was
convicted in 2010 of violating California Health & Safety
Code § 11377(a), which makes possession of certain
controlled substances a misdemeanor under state law.
Although this statute is overbroad, in that it sweeps more
drugs into its ambit than does the federal Controlled
Substances Act, it is also divisible, such that we may consult
judicially noticeable conviction documents to determine
whether Garcia was convicted of a crime that corresponds to
the federal definition. See Coronado v. Holder, 759 F.3d
977, 983–85 (9th Cir. 2014) (as amended). Here, the
conviction documents establish “that [Garcia’s] criminal
conviction was for possession of a substance” —
methamphetamine — “that is listed under California law and
the [federal drug] schedules.” Id. at 982 (emphasis omitted).
The parties dispute only whether § 1252(a)(2)(C)’s bar on
judicial review applies to the denial of a procedural motion
such as Garcia’s motion to continue. The statute provides
that “no court shall have jurisdiction to review any final order
of removal against an alien who is removable by reason of
having committed a criminal offense covered in” various
other provisions. 8 U.S.C. § 1252(a)(2)(C). The government
argues that this statutory language strips us of jurisdiction not
GARCIA V. LYNCH 9
only over the removal order itself, but also over all other
orders that precede it, whether substantive or procedural in
nature. In the government’s view, and in the view of several
of our sister circuits, such orders are encompassed in the
statutory phrase “final order of removal.” See, e.g., Moral-
Salazar v. Holder, 708 F.3d 957, 962 (7th Cir. 2013);
Ogunfuye v. Holder, 610 F.3d 303, 307 (5th Cir. 2010).
We disagree with the government. We have previously
held that the statute, which refers to an “order of removal
against an alien who is removable by reason of” a qualifying
conviction, does not sweep in “all petitions for review filed
by petitioners with a[] [qualifying] conviction in their past.”
Unuakhaulu v. Gonzales, 416 F.3d 931, 935–36 (9th Cir.
2005) (as amended). Rather, it bars review only of those
orders that are actually “predicated on commission or
admission of a crime.” Id. (quoting Alvarez-Santos v. INS,
332 F.3d 1245, 1247 (9th Cir. 2003)). On this rationale, we
have held that the § 1252(a)(2)(C) bar does not preclude
review of a denial of relief that is based not on the
“commission or admission of a crime,” but rather on the
alien’s failure to establish his or her eligibility for the relief
sought. See Pechenkov v. Holder, 705 F.3d 444, 448–49 (9th
Cir. 2012); Bromfield v. Mukasey, 543 F.3d 1071, 1074–76
(9th Cir. 2008); Morales v. Gonzales, 478 F.3d 972, 976,
980–81 (9th Cir. 2007) (as amended). Under the rule
established by these cases, we retain jurisdiction over a
petition for review challenging the denial of relief “on the
merits,” rather than on the basis of the qualifying conviction.
Despite criticism from within our court, see Pechenkov,
705 F.3d at 449–52 (Graber, J., concurring), Unuakhaulu and
its progeny remain good law.
10 GARCIA V. LYNCH
The government identifies no principled way to
distinguish these cases from the one before us, and we can
think of none. If the § 1252(a)(2)(C) bar precludes review
only of decisions “predicated on commission or admission of
a crime,” see id., it stands to reason that the provision does
not bar review of the denial of a procedural motion (such as
a motion to continue) that is not predicated on the fact that
the movant has been convicted of a qualifying crime. We see
no reason why the rule established by our caselaw should
apply to the denial of substantive relief, but not the denial of
procedural relief. Indeed, the case for reading
§ 1252(a)(2)(C) to bar review of the denial of substantive
relief is stronger than the case for reading it to bar review of
the denial of procedural relief, given that most procedural
decisions are unrelated to the substantive basis for finding an
alien removable — i.e., the predicate crime triggering
§ 1252(a)(2)(C). See Calma v. Holder, 663 F.3d 868, 876–77
(7th Cir. 2011) (“We are persuaded that there are identifiable
circumstances under which a critical procedural step in a
removal proceeding . . . lies within our jurisdiction even
though we are barred from evaluating the BIA’s ultimate
decision . . . .”). For these reasons, we conclude that the
§ 1252(a)(2)(C) bar does not apply to the denial of a
procedural motion that rests on a ground independent of the
conviction that triggers the bar.
Because we conclude that 8 U.S.C. § 1252(a)(2)(C) does
not bar our review of the denial of Garcia’s motion to
continue, we proceed to the merits of Garcia’s claim.
III. Denial of a Further Continuance
The governing regulations permit an immigration judge
to “grant a motion for continuance for good cause shown.”
GARCIA V. LYNCH 11
8 C.F.R. § 1003.29. The decision to grant or deny the
continuance is within “the sound discretion of the judge and
will not be overturned except on a showing of clear abuse.”
Sandoval-Luna, 526 F.3d at 1247 (quoting De la Cruz v. INS,
951 F.2d 226, 229 (9th Cir. 1991)). When reviewing an IJ’s
denial of a continuance, we consider several factors,
including: (1) the nature of the evidence not obtained or
admitted as a result of the denial of the continuance, (2) the
reasonableness of the alien’s conduct, (3) the inconvenience
to the court, and (4) the number of continuances previously
granted. Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir.
2009).
On the facts here, we conclude there was no abuse of
discretion. Although it would have been reasonable for the
IJ to grant Garcia an additional continuance, it was not
unreasonable for him not to do so. Garcia claimed that he
would have used the additional time to seek postconviction
relief, but he had previously sought such relief to no avail.
Indeed, he had failed to complete the program that could have
resulted in the expungement of his state conviction. Further,
the IJ had previously continued Garcia’s proceedings three
times for various procedural reasons. Although “[t]he IJ’s
discretion . . . is not without limits,” id., the IJ here acted
within those limits in declining to continue Garcia’s
proceedings for a fourth time. There was no abuse of
discretion.
Conclusion
We hold that 8 U.S.C. § 1252(a)(2)(C) does not bar
review over the denial of a procedural motion, such as a
motion for a continuance, that rests on a ground independent
from the conviction that triggers the statutory bar. However,
12 GARCIA V. LYNCH
because the IJ did not abuse his discretion in denying
Garcia’s motion to continue, we deny Garcia’s petition for
review.
PETITION DENIED.