NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 28 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JUAN ANTONIO DURAN FACUNDO, No. 18-71661 AKA Jose Duran, AKA Juan Facundo, 19-71647 Petitioner, Agency No. A092-799-257 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted May 7, 2021** Pasadena, California Before: WARDLAW, GOULD, and OWENS, Circuit Judges. In No. 18-71661 of this consolidated appeal, Juan Duran-Facundo (“Petitioner”) petitions for review of a Board of Immigration Appeals’ (“BIA”) dismissal of an Immigration Judge’s (“IJ”) denial of a continuance and denial of * 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). Petitioner’s claims for asylum, withholding, and deferral of removal under the Convention Against Torture (“CAT”). In No. 19-71647, Petitioner challenges the BIA’s denial of his motion to reopen. We have jurisdiction under 8 U.S.C. § 1252. We grant the petition in No. 19-71647 in part as to the BIA’s denial of Petitioner’s motion to reopen based on his pending U visa application, and remand for further proceedings. We deny the petition in No. 18-71661 as to all other claims. 1. We review the BIA’s denial of a continuance for abuse of discretion. Taggar v. Holder, 736 F.3d 886, 889 (9th Cir. 2013). Petitioner contends that the BIA erred by denying the continuance for two independent reasons. Neither contention is persuasive. First, Petitioner contends that the BIA erred in finding a lack of “good cause” for a continuance based on Petitioner’s prima facie eligibility for a U visa. See 8 C.F.R. § 1003.29. In determining whether good cause exists to continue removal proceedings to await the adjudication of a pending U-visa petition, an IJ should consider “DHS’s response to the motion” for a continuance, “whether the underlying visa petition is prima facie approvable,” and “the reason for the continuance and other procedural factors.” Matter of Sanchez Sosa, 25 I. & N. Dec. 807, 812–13 (B.I.A. 2012). The BIA rationally considered these factors and relied on the fact that Petitioner did not submit evidence of an approved law 2 enforcement certification, demonstrating prima facie U-visa eligibility.1 Second, Petitioner contends that the BIA erred by finding Petitioner was never “admitted” to the United States for purposes of seeking adjustment based on either his prior grant of lawful temporary status or his having been “waved in” at the border. The Attorney General may accord lawful permanent resident status to a noncitizen “who was inspected and admitted or paroled into the United States.” 8 U.S.C. § 1255(a). Petitioner has not shown he was “inspected and admitted” for immigration purposes because when his former lawful status was terminated, that termination operated to revoke any prior admission. See United States v. Hernandez-Arias, 757 F.3d 874, 881 (9th Cir. 2014). …
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals