RAFAEL SANCHEZ HERRERA, AKA Jose Luis Sanchez Herrera v. WILLIAM P. BARR, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAFAEL SANCHEZ HERRERA, AKA
Jose Luis Sanchez Herrera,
Petitioner,
v.
WILLIAM P. BARR, Attorney General,
Respondent.
No. 17-72578
Agency No. A095-739-942
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 4, 2019**
Pasadena, California
Before: KLEINFELD, Circuit Judge, COLE, Chief Circuit Judge,*** and
NGUYEN, Circuit Judge.
Rafael Sanchez Herrera, a native and citizen of Mexico, petitions for review
of a Board of Immigration Appeals (“BIA”) order dismissing his appeal from an
* 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).
*** The Honorable Ransey Guy Cole, Jr., Chief Circuit Judge for the U.S.
Court of Appeals for the Sixth Circuit, sitting by designation.
FILED
APR 3 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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immigration judge (“IJ”) order of removal. We have jurisdiction pursuant to 8
U.S.C. § 1252, and we deny the petition.
Aliens in immigration proceedings have a constitutional and statutory “right
to be represented by counsel at [their] own expense.” Gomez-Velazco v. Sessions,
879 F.3d 989, 993 (9th Cir. 2018). We review for abuse of discretion the IJ’s
decision not to continue a hearing to allow additional time to find counsel. Arrey
v. Barr, 916 F.3d 1149, 1158 (9th Cir. 2019). An IJ’s failure to “inquire
specifically as to whether [the] petitioner wishes to continue without a lawyer” or
“receive a knowing and voluntary affirmative response” may constitute an abuse of
discretion. Tawadrus v. Ashcroft, 364 F.3d 1099, 1103 (9th Cir. 2004).
Here, in finding that Sanchez Herrera had “not demonstrated good cause for
additional time to look for an attorney,” the IJ assumed that Sanchez Herrera
wanted one to represent him at the merits hearing. In light of this assumption, the
IJ’s failure to ask if Sanchez Herrera wanted to proceed without an attorney was
not an abuse of discretion.
Sanchez Herrera was given a 26-day continuance to find counsel. Although
he was in custody and primarily spoke Spanish, his sister was a U.S. citizen. The
continuance provided Sanchez Herrera sufficient time to obtain counsel to
represent him at a bond hearing. Under these circumstances, 26 days was a

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“reasonable time to locate counsel” for the merits hearing, Arrey, 916 F.3d at 1158,
and the IJ’s denial of a second continuance was not an abuse of discretion.1
PETITION FOR REVIEW DENIED.
1 We reject, as unsupported, Sanchez Herrera’s bald assertion that he “was
erroneously placed in removal proceedings.” See Fed. R. App. P. 28(a)(8);
Tamayo-Tamayo v. Holder, 725 F.3d 950, 952 (9th Cir. 2013).

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