NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT DEC 15 2009
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
VICENTE MARTINEZ GUZMAN; et al., No. 05-73837
Petitioners, Agency Nos. A075-304-471
A075-304-472
v. A075-304-473
A075-304-474
ERIC H. HOLDER Jr., Attorney General,
Respondent. MEMORANDUM *
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 4, 2009
San Francisco, California
Before: HAWKINS and THOMAS, Circuit Judges, and KORMAN, **
District Judge.
Petitioners Vicente Martinez-Guzman, Maria Hernandez-Garcia, Marco
Martinez-Hernandez, and Raul Martinez-Hernandez (“Petitioners”), seek review of
the decision of the Board of Immigration Appeals adopting and affirming the decision
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Edward R. Korman, Senior United States District Judge
for the Eastern District of New York, sitting by designation.
of the Immigration Judge (“IJ”). The IJ denied their applications for asylum,
withholding of removal, protection under the Convention Against Torture, and
cancellation of removal. Petitioners claim denial of their motion for continuance was
an abuse of discretion and that they were neither fully represented at the ensuing early
hearing nor adequately treated if considered pro se. We grant the petition and remand
for a new hearing.
An IJ’s decision to deny a request for continuance is reviewed for an abuse of
discretion, Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009), and we consider
the following: “(1) the importance of the evidence [that denial of the motion
excluded], (2) the unreasonableness of the immigrant’s conduct, (3) the inconvenience
to the court, and (4) the number of continuances previously granted.” Cui v. Mukasey,
538 F.3d 1289, 1292 (9th Cir. 2008) (citing Baires v. INS, 856 F.2d 89, 92-93 (9th
Cir. 1988)). Central to the analysis is whether an alien’s statutory or constitutional
rights are violated because the IJ denies a continuance. See Baires, 856 F.2d at 90-91
& n.2.
Petitioners claim the denial of a continuance was an abuse of discretion because
their counsel appeared telephonically on a poor connection and was unprepared after
receiving only three weeks notice of a hearing date accelerated from October 9, 2003,
to July 31, particularly given his previously-scheduled out-of-state hearing on July 30.
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Petitioners do not point to excluded, potentially dispositive evidence, see Cui
v. Mukasey, 538 F.3d at 1292, but we have explained prima facie eligibility is not
required to show “good cause” for a continuance, nor does the lack of it excuse an
abuse of discretion. Ahmed, 569 F.3d at 1015. Petitioners have not acted
unreasonably as their counsel’s failure to attend the hearing should not be attributed
to their bad faith. See Mendoza-Mazariegos v. Mukasey, 509 F.3d 1074, 1083 (9th
Cir. 2007). Neither the government nor the immigration court argued any specific
inconvenience, aside from the IJ claiming “more judge resources became available
and were sent to San Francisco . . . with significant expense to the department and tax
payers.” See Cruz Rendon v. Holder, No. 06-70301, slip. op. at 15791 (9th Cir. Dec.
2, 2009) (“A further continuance would not have inconvenienced the court, except to
the extent that the IJ wanted the case off her docket.”). Petitioners’ pursuit of a fifth
continuance may weigh against them, and the IJ assigned great weight to the length
of the case’s pendency. Yet, “[i]t would be unfair to punish [Petitioners] for . . . the
crowded docket of the immigration courts.” Cui, 538 F.3d at 1295. Here, the
immigration court’s docket delayed the case significantly, with hearing dates
scheduled seventeen months and more than two years in the future.
On balance, consideration of the four factors does not weigh conclusively in
either direction. However, Petitioners’ hearing was advanced more than two months
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on short notice. Their counsel notified the court of several specific reasons why the
new date would present difficulties, and did not contest the original schedule.
Counsel was not notified of the denial of the motion until the morning of the hearing.
During the hearing, Petitioners’ counsel repeatedly renewed the continuance
motion when it became clear the audio quality was poor, explaining he was
unprepared to proceed and could not hear the proceedings. In response to Petitioners’
counsel’s request to be relieved, the IJ stated, “You’re the person who relieved
yourself of representation, by going out of town, after you knew the motion for
continuance was denied.” For the duration of the hearing it was unclear whether the
IJ considered Petitioners to be proceeding pro se, requiring their knowing and
voluntary waiver of the statutory right to counsel, see Tawadrus v. Ashcroft, 364 F.3d
1099, 1103 (9th Cir. 2004), which the IJ failed to obtain.
“‘[A] myopic insistence upon expeditiousness in the face of a justifiable request
for delay’ can render the alien’s statutory rights merely ‘an empty formality.’” Baires,
856 F.2d at 91 (quoting Ungar v. Sarafite, 376 U.S. 575, 589 (1964)); see also Ahmed,
569 F.3d at 1013; Cui, 538 F.3d at 1292; Hernandez-Gil v. Gonzales, 476 F.3d 803,
807 (9th Cir. 2007). Under these circumstances, the overall handling of the
continuance motion and the IJ’s failure to specifically inquire of the Petitioners
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whether they wished to proceed without their attorney, constitutes an abuse of
discretion.
PETITION GRANTED and REMANDED.
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