NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 1 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIA MONSERRAT MORENO- No. 19-72944
VALENCIA, AKA Francisca Valencia,
AKA Francisca Valencia Acuna, AKA Agency No. A206-093-375
Maria de Monserrat Moreno Valencia,
Petitioner, MEMORANDUM*
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 8, 2021**
Seattle, Washington
Before: W. FLETCHER, WATFORD, and COLLINS, Circuit Judges.
Maria Monserrat Moreno-Valencia petitions for review of a Board of
Immigration Appeals (BIA) decision dismissing her appeal from the order of the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Page 2 of 4
immigration judge (IJ) denying her motion to continue proceedings and her
application for cancellation of removal. She also argues that her waiver of counsel
at the removal hearing was invalid. We grant the petition as to the motion to
continue proceedings and dismiss as to the other claims for lack of jurisdiction.
1. A decision regarding whether a pending petition for collateral relief
provides “good cause” to continue removal proceedings “must focus principally on
two factors: (1) the likelihood that the alien will receive the collateral relief, and
(2) whether the relief will materially affect the outcome of the removal
proceedings.” Matter of L-A-B-R-, 27 I. & N. Dec. 405, 413 (A.G. 2018).
“[T]here is a rebuttable presumption that an alien who has filed a prima facie
approvable [U-visa] application with the USCIS will warrant a favorable exercise
of discretion for a continuance for a reasonable period of time.” Matter of Sanchez
Sosa, 25 I. & N. Dec. 807, 815 (BIA 2012). Beyond this “most important
consideration,” the decision “must also consider any other relevant factors,” such
as “administrative efficiency.” L-A-B-R-, 27 I. & N. Dec. at 415. However,
“delays in the USCIS approval process are no reason to deny an otherwise
reasonable continuance request. . . . If approval can wait, then surely removal can
also wait.” Malilia v. Holder, 632 F.3d 598, 606 (9th Cir. 2011).
The IJ did not apply this standard to Moreno-Valencia’s request to continue
her removal proceedings based on her pending petition for a U-visa. The IJ based
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his denial only on the irrelevant fact that Moreno-Valencia’s ex-husband had
already “been deported based on her report of his criminal activity.”
The BIA also failed to apply the proper standard. The BIA did not refer to
the likelihood that Moreno-Valencia would receive a U-visa or to whether the
grant of a U-visa would materially affect her removal proceedings. Instead, the
sole fact the BIA offered to support its decision was the lengthy “average
processing time” for the USCIS to decide U-visa petitions. But if Moreno-
Valencia’s request was “otherwise reasonable,” the USCIS’s inefficiency provides
“no reason” to deny it. Malilia, 632 F.3d at 606. And although Moreno-Valencia
had received previous continuances based on her U-visa application, the BIA made
no finding on this issue, let alone a finding that Moreno-Valencia had not
“‘exercise[d] due diligence’ in pursuing” the U-visa. L-A-B-R-, 27 I. & N. Dec. at
415 (quoting Mazariegos-Paiz v. Holder, 734 F.3d 57, 66 (1st Cir. 2013)); see also
id. at 417 (“A [petitioner] who makes a compelling case that he will receive
collateral relief and successfully adjust status may receive a continuance even
if . . . he has already received previous continuances.”). We therefore grant
Moreno-Valencia’s petition as to this issue and remand for reconsideration under
the proper legal standard.
2. We lack jurisdiction to review Moreno-Valencia’s challenges to the
BIA’s and IJ’s determination of “exceptional and extremely unusual hardship”
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under 8 U.S.C. § 1229b(b)(1)(D), as those challenges do not raise a colorable
constitutional or legal question. See 8 U.S.C. § 1252(a)(2)(B)(i), (a)(2)(D);
Arteaga-De Alvarez v. Holder, 704 F.3d 730, 735–37 (9th Cir. 2012). For
example, contrary to Moreno-Valencia’s contentions, the IJ did not err as a legal
matter by failing to consider the special needs of her older child or the derivative
hardship from her removal. Rather, the IJ noted the child’s “educational . . .
special needs,” Moreno-Valencia’s “fear of her ex-husband,” her employment
prospects, and her family in Mexico, among other factors. The BIA also noted her
child’s special needs before applying In re Andazola-Rivas, 23 I. & N. Dec. 319
(BIA 2002). We therefore dismiss the petition as to the denial of cancellation of
removal.
3. Moreno-Valencia also challenges the validity of her waiver of counsel,
but she did not raise this issue in her brief to the BIA. We therefore lack
jurisdiction to review the validity of the waiver. See Sola v. Holder, 720 F.3d
1134, 1135–36 (9th Cir. 2013) (per curiam). Accordingly, we dismiss the petition
as to this issue as well.
PETITION FOR REVIEW GRANTED in part and DISMISSED in
part; CASE REMANDED.
The parties shall bear their own costs.