Luis Fernando Morales Valencia v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUIS FERNANDO MORALES
VALENCIA,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 22-1958
Agency No. A200-155-772
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 9, 2024**
Pasadena, California
Before: SCHROEDER, BUMATAY, and MENDOZA, Circuit Judges.
Petitioner Luis Fernando Morales Valencia (“Valencia”) seeks review of a
decision by the Board of Immigration Appeals (“BIA”) affirming a decision by an
Immigration Judge (“IJ”) denying him an additional continuance. We review 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).
FILED
FEB 13 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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agency’s decision to deny a continuance for abuse of discretion. Cui v. Mukasey,
538 F.3d 1289, 1290 (9th Cir. 2008). We have jurisdiction under 8 U.S.C. § 1252,
and we deny the petition for review.
Here, the IJ did not abuse its discretion in denying Valencia a continuance.
8 C.F.R. § 1003.29 permits an agency to grant a continuance where good cause is
shown. In determining whether a continuance is appropriate, courts consider a
number of factors, including: “(1) the importance of the evidence, (2) the
unreasonableness of the immigrant’s conduct, (3) the inconvenience to the court,
and (4) the number of continuances previously granted.” Cui, 538 F.3d at 1292.
The decision to grant a continuance is committed to the sound discretion of the
agency. Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1247 (9th Cir. 2008). The
agency abuses that discretion where it acts arbitrarily, irrationally, or contrary to
law. Avagyan v. Holder, 646 F.3d 672, 678 (9th Cir. 2011).
The timeline of relevant events underscores the reasonableness of the IJ’s
decision not to grant Valencia another continuance. When the IJ denied Valencia a
continuance in September 2019, Valencia had been in removal proceedings for
over seven years and without counsel for over two years. The IJ had
administratively closed proceedings once and continued proceedings twice, one
time explicitly so Valencia could get an attorney. But Valencia did not obtain
counsel in his extra time. Seven years and three delays later, it was not

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unreasonable for the IJ to want to get the show on the road. See Gonzalez-Veliz v.
Garland, 996 F.3d 942, 949 (9th Cir. 2021) (holding that it was not an abuse of
discretion to deny a request for more time to obtain an attorney after the IJ had
already granted a two-month continuance for that purpose). Viewed in context, the
IJ did not act arbitrarily, irrationally, or contrary to law in denying the continuance.
See Avagyan, 646 F.3d at 678.
Valencia protests that the IJ abused its discretion because he had
demonstrated good cause for a continuance, namely that he had been in an accident
and was unable to work and earn money to hire an attorney. But Valencia’s bare
allegation that he had been in an accident that prevented him from securing counsel
does not amount to good cause. See 8 C.F.R. § 1003.29. He did not elaborate on
the circumstances surrounding his accident, the nature of his injuries, or their
impact on his ability to work for ten months. In light of those shortcomings, it was
not an abuse of discretion for the IJ to determine that Valencia had not
demonstrated good cause for a continuance. See Avagyan, 646 F.3d at 678.
Finally, even if the IJ erred in denying Valencia an additional continuance,
that error was harmless because Valencia had not submitted an application for
relief from removal. If Valencia had submitted an application for relief, the BIA
reasonably determined that he would not have been eligible.
PETITION DENIED.

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