FILED NOT FOR PUBLICATION MAY 12 2023 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT LEONEL GARCIA MARTINEZ, No. 22-57 Petitioner, Agency No. A079-641-731 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted May 10, 2023** San Francisco, California Before: S.R. THOMAS, CHRISTEN, and BRESS, Circuit Judges. Leonel Garcia Martinez, a native and citizen of Mexico, petitions for review of a Board of Immigration Appeals (“BIA”) opinion affirming an Immigration * 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). Judge’s (“IJ”) decision denying his applications for adjustment of status, a waiver of inadmissibility, asylum, and withholding of removal. We have jurisdiction under 8 U.S.C. § 1252(a) and we deny the petition in part and dismiss it in part. We review an IJ’s denial of a continuance for abuse of discretion and questions of law, including due process claims, de novo. Cruz Rendon v. Holder, 603 F.3d 1104, 1109 (9th Cir. 2010). Because the parties are familiar with the facts of the case, we recount them here only as necessary. 1. Garcia Martinez was not denied due process when the IJ declined to continue all testimony at the December 2019 asylum hearing. To prevail on his due process claim, Garcia Martinez must show that his proceedings were “so fundamentally unfair” that he could not reasonably present his case. Id. (quoting Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000)). When a due process claim is based on a denial of a continuance, we determine whether the IJ abused his or her discretion by considering factors including: “(1) the nature of the evidence excluded as a result of the denial of the continuance; (2) the reasonableness of the immigrant’s conduct; (3) the inconvenience to the court; and (4) the number of continuances previously granted.” Id. at 1110. We also consider whether the applicant was previously warned and understood that no further continuances would be granted. See Arrey v. Barr, 916 F.3d 1149, 1158 (9th Cir. 2019). 2 Here, the IJ granted a partial continuance so that Garcia Martinez could work with an attorney to revive his lapsed adjustment of status application. The IJ acted reasonably in proceeding to take pro se testimony on the asylum and withholding claims scheduled for that day because Garcia Martinez had already received several continuances and been told that no more would be granted, and clarified that his attorney would not be representing him for the asylum proceedings. Although the pro se asylum testimony impacted Garcia Martinez’s adjustment proceedings because the IJ relied on that testimony in finding Garia Martinez had committed a violent or dangerous crime, Garcia Martinez was able to reasonably present his adjustment claim. While represented at a later hearing, …
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