Moreno v. Garland

• Decision Date: 30 December 2022
• Docket Number: 18-72537
• Parties: JUAN FERNANDO MORENO, AKA Juan Moreno, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

JUAN FERNANDO MORENO, AKA Juan Moreno, Petitioner,
v.
MERRICK B. GARLAND, Attorney General, Respondent.

No. 18-72537

United States Court of Appeals, Ninth Circuit

December 30, 2022

NOT FOR PUBLICATION

Submitted June 14, 2022 ^[**] Pasadena, California

On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A200-246-777

Before: RAWLINSON and CHRISTEN, Circuit Judges, and SIMON, ^[***] District Judge.

MEMORANDUM ^[*]

Juan Fernando Moreno (Moreno), a native and citizen of Mexico, petitions

1

for review of a Board of Immigration Appeals (BIA) decision denying his application for cancellation of removal. He makes two arguments. First, Moreno contends that the BIA abused its discretion by affirming the decision of the Immigration Judge (IJ) denying Moreno's request for an additional continuance after several had been granted already. Second, Moreno challenges the denial of his motion to remand sua sponte. To the extent we have jurisdiction, it is under 8 U.S.C. § 1252. We DENY in part and DISMISS in part.

1. We review an agency's denial of a motion for continuance for abuse of discretion. Pleitez-Lopez v. Barr, 935 F.3d 716, 719 (9th Cir. 2019).

The BIA did not abuse its discretion by affirming the IJ's denial of Moreno's motion for an additional continuance. In December 2011, the Department of Homeland Security (DHS) commenced removal proceedings against Moreno. Between 2012 and 2016, Moreno received several continuances, including three continuances to permit him to retain counsel, two continuances for attorney preparation (one of which was caused by Moreno's failure to respond to his counsel for more than eight months), and one continuance to wait for his United States citizen child to be born. At his August 2016 merits hearing, Moreno asked for a further continuance to begin seeking expungement of a 2012 conviction, after which he hoped to request a favorable exercise of the DHS's prosecutorial discretion. Counsel for DHS responded that based on her review, DHS would

2

likely not grant Moreno prosecutorial discretion even if he successfully expunged his conviction. The IJ denied Moreno's request for lack of good cause. At the conclusion of the hearing, Moreno reiterated his request for a continuance, adding that he needed time to divorce his wife and marry his girlfriend so that her two United States citizen daughters would become his stepdaughters and additional qualifying relatives. The IJ denied that...