Francisco Gardea Cereceres v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANCISCO GARDEA CERECERES,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 22-134
Agency No.
A215-648-966
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 17, 2023**
Before: HAWKINS, S.R. THOMAS, and McKEOWN, Circuit Judges.
Francisco Gardea Cereceres, a native and citizen of Mexico, petitions pro
se for review of a Board of Immigration Appeals (“BIA”) decision dismissing
his appeal from the Immigration Judge’s (“IJ”) removal order denying him a
continuance to seek post-conviction relief. We have jurisdiction under 8 U.S.C.
§ 1252. To the extent that the BIA incorporated the IJ’s reasoning, we review
* 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).
FILED
JUL 19 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 22-134
both decisions. Iman v. Barr, 972 F.3d 1058, 1064 (9th Cir. 2020). We review
for abuse of discretion the denial of a continuance and review de novo questions
of law. Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009). Because the
parties are familiar with the factual background, we need not recount it here.
We deny the petition.
An IJ may, in its discretion, “grant a motion for continuance for good
cause shown.” See 8 C.F.R. § 1003.29; Sandoval-Luna v. Mukasey, 526 F.3d
1243, 1247 (9th Cir. 2008) (per curiam) (the decision to grant or deny the
continuance is within “the sound discretion of the judge and will not be
overturned except on a showing of clear abuse” (citation omitted)). The
decision requires weighing several factors, if relevant. See Ahmed, 569 F.3d at
1012 (setting out the factors to consider in a good-cause analysis); Matter of L-
A-B-R-, 27 I. & N. Dec. 405, 406 (A.G. 2018) (the most important factor is “the
likelihood that the collateral relief will be granted and will materially affect the
outcome of the removal proceedings”).
The agency did not abuse its discretion in denying Gardea Cereceres’s
motion to continue. Gardea Cereceres’s conviction was final for immigration
purposes. Gardea Cereceres neither provided evidence of the basis of his post-
conviction relief petition nor updated the agency on the progress of that petition.
Post-conviction relief was therefore merely a speculative possibility. See
Garcia v. Lynch, 798 F.3d 876, 881 (9th Cir. 2015). Even if the IJ erred by
failing to consider the short procedural history of Gardea Cereceres’ case, see

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Matter of L-A-B-R-, 27 I. & N. Dec. at 415, the BIA acknowledged the
relevance of that history before concluding de novo that the relevant factors,
considered together, did not establish good cause. See Brezilien v. Holder, 569
F.3d 403, 411 (9th Cir. 2009) (“Where the BIA conducts a de novo review, any
error committed by the IJ will be rendered harmless by the Board’s application
of the correct legal standard.” (citation omitted) (cleaned up)). Without legal
error or clear and convincing evidence demonstrating good cause, it was well
within the IJ’s discretion to deny the requested continuance.
PETITION DENIED.

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