HECTOR RAFAEL GUTIERREZ, AKA Hector Rafael Gutierrez Montoya v. LORETTA E. LYNCH, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HECTOR RAFAEL GUTIERREZ, AKA
Hector Rafael Gutierrez Montoya,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
No. 15-71485
Agency No. A200-370-217
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 14, 2016**
Before: WALLACE, LEAVY, and FISHER, Circuit Judges.
Hector Rafael Gutierrez, a native and citizen of Mexico, petitions for review
of the Board of Immigration Appeals’ order dismissing his appeal from an
immigration judge’s (“IJ”) order denying a continuance and entering an order of
removal. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of
FILED
DEC 20 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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discretion the denial of a continuance and review de novo constitutional claims.
Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1246 (9th Cir. 2008). We deny the
petition for review.
The agency did not abuse its discretion or violate due process by denying
Gutierrez’ motion for a continuance to seek post-conviction relief for failure to
establish good cause. See 8 C.F.R. § 1003.29 (an IJ may grant a motion for a
continuance for good cause). Gutierrez’ conviction was final for immigration
purposes, the possibility of post-conviction relief was speculative at the time of his
last hearing, and he failed to submit any evidence with his appeal or after that his
conviction had been vacated. See Sandoval-Luna, 526 F.3d at 1247 (the denial of a
continuance was within the agency’s discretion where relief was not immediately
available to petitioner); Singh v. Holder, 638 F.3d 1264, 1274 (9th Cir. 2011)
(“[T]he IJ [is] not required to grant a continuance based on . . . speculations.”);
Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (to prevail on a due process
challenge, an alien must show error and prejudice). Gutierrez’ contention that the
IJ denied the continuance based solely on case completion goals is belied by the
record.
The record does not support Gutierrez’ contention that the agency failed to
address his arguments or failed to provide sufficient reasoning and analysis. See
15-71485 2

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Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010) (the agency must
“consider the issues raised, and announce its decision in terms sufficient to enable
a reviewing court to perceive that it has heard and thought and not merely reacted”
(citation and quotation marks omitted)).
PETITION FOR REVIEW DENIED.
15-71485 3

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