FILED
NOT FOR PUBLICATION
MAY 12 2023
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEONEL GARCIA MARTINEZ, No. 22-57
Petitioner, Agency No. A079-641-731
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 10, 2023**
San Francisco, California
Before: S.R. THOMAS, CHRISTEN, and BRESS, Circuit Judges.
Leonel Garcia Martinez, a native and citizen of Mexico, petitions for review
of a Board of Immigration Appeals (“BIA”) opinion affirming an Immigration
*
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).
Judge’s (“IJ”) decision denying his applications for adjustment of status, a waiver
of inadmissibility, asylum, and withholding of removal. We have jurisdiction
under 8 U.S.C. § 1252(a) and we deny the petition in part and dismiss it in part.
We review an IJ’s denial of a continuance for abuse of discretion and questions of
law, including due process claims, de novo. Cruz Rendon v. Holder, 603 F.3d
1104, 1109 (9th Cir. 2010). Because the parties are familiar with the facts of the
case, we recount them here only as necessary.
1. Garcia Martinez was not denied due process when the IJ declined to
continue all testimony at the December 2019 asylum hearing. To prevail on his
due process claim, Garcia Martinez must show that his proceedings were “so
fundamentally unfair” that he could not reasonably present his case. Id. (quoting
Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000)). When a due process claim is
based on a denial of a continuance, we determine whether the IJ abused his or her
discretion by considering factors including: “(1) the nature of the evidence
excluded as a result of the denial of the continuance; (2) the reasonableness of the
immigrant’s conduct; (3) the inconvenience to the court; and (4) the number of
continuances previously granted.” Id. at 1110. We also consider whether the
applicant was previously warned and understood that no further continuances
would be granted. See Arrey v. Barr, 916 F.3d 1149, 1158 (9th Cir. 2019).
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Here, the IJ granted a partial continuance so that Garcia Martinez could
work with an attorney to revive his lapsed adjustment of status application. The IJ
acted reasonably in proceeding to take pro se testimony on the asylum and
withholding claims scheduled for that day because Garcia Martinez had already
received several continuances and been told that no more would be granted, and
clarified that his attorney would not be representing him for the asylum
proceedings. Although the pro se asylum testimony impacted Garcia Martinez’s
adjustment proceedings because the IJ relied on that testimony in finding Garia
Martinez had committed a violent or dangerous crime, Garcia Martinez was able to
reasonably present his adjustment claim. While represented at a later hearing,
Garcia Martinez testified again to the circumstances of his conviction and was not
prevented from elaborating on the events or explaining or qualifying his past
testimony with the assistance of counsel. As the proceedings were not
fundamentally unfair, Garcia Martinez’s due process claim fails.
2. We lack jurisdiction over Garcia Martinez’s claim that the IJ made
findings that are contradicted by the record. See Patel v. Garland, 142 S. Ct. 1614,
1627 (2022) (holding federal courts do not have “jurisdiction to review facts found
as part of discretionary-relief proceedings,” including adjustment of status and
waivers of inadmissibility).
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3. The remainder of Garcia Martinez’s claims based on the agency’s
treatment of the evidence fail on the merits. The BIA did not ignore Garcia
Martinez’s December 2019 testimony, as the opinion explicitly refers to that
testimony. See Szonyi v. Barr, 942 F.3d 874, 896–97 (9th Cir. 2019).
The IJ did not need to allow Garcia Martinez to explain the inconsistencies
between his December 2019 and March 2020 testimony. The requirement that the
IJ afford applicants an opportunity to explain inconsistencies only attaches when
the IJ makes an adverse credibility finding. See Munyuh v. Garland, 11 F.4th 750,
758 (9th Cir. 2021); Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th Cir. 1999)
superseded by statute on other grounds as stated in Xia Xia Lin v. Mukasey, 534
F.3d 162, 165 (2d Cir. 2008) (per curiam); see also Ordonez v. INS, 345 F.3d 777,
786 (9th Cir. 2003) (recognizing that the BIA may in some circumstances make a
de facto adverse credibility finding). Here, the IJ did not make an explicit or de
facto adverse credibility finding, but rather resolved some inconsistencies in
testimony by crediting the version the IJ found more persuasive. See Garland v.
Ming Dai, 141 S. Ct. 1669, 1677 (2021) (factfinders in immigration proceedings
are “free to credit part of a witness’ testimony without necessarily accepting it all”
(quoting Banks v. Chi. Grain Trimmers Assn., Inc., 390 U.S. 459, 467 (1968)
(internal quotation marks and alterations omitted))).
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4. We need not reach Garcia Martinez’s arguments that his 2017 conviction
was not for a violent or dangerous crime and that the BIA misapplied the
exceptional and extremely unusual hardship standard by ignoring the hardships he
and his siblings would face upon his removal. The BIA’s denial of relief as a
matter of discretion is independently dispositive of Garcia Martinez’s adjustment
of status and waiver of inadmissibility applications. Patel, 142 S. Ct. at 1619
(explaining that discretion is a separate hurdle from eligibility, and that if the IJ
“decides that denial would be appropriate regardless of eligibility, the judge need
not address eligibility at all”); 8 U.S.C. §§ 1255(a), (i), 1182(h)(1)(B); 8 C.F.R. §
1212.7(d). As Garcia Martinez does not raise any challenge to the discretionary
denial beyond his due process and evidentiary claims, discussed above, we need
not reach these challenges to the BIA’s eligibility determinations. See Mendez-
Alcaraz v. Garland, 464 F.3d 842, 844 (9th Cir. 2006).
PETITION DENIED IN PART, DISMISSED IN PART.
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