Angel Calixto Hernandez v. William Barr

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 23 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ANGEL CALIXTO HERNANDEZ, AKA No. 18-70025 Angel Calixto, AKA Angel Hernandez, Agency No. A200-947-926 Petitioner,

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted May 21, 2019** Before: THOMAS, Chief Judge, FRIEDLAND and BENNETT, Circuit Judges.

Angel Calixto Hernandez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his motion for a continuance and denying cancellation of removal. We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the agency’s continuous physical presence

* 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).

determination. Gutierrez v. Mukasey, 521 F.3d 1114, 1116 (9th Cir. 2008). We review for abuse of discretion the agency’s denial of a continuance. Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009). We review de novo due process claims. Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000). We deny the petition for review.

Substantial evidence supports the agency’s determination that Calixto Hernandez failed to present sufficient testimonial and documentary evidence to establish the requisite continuous physical presence for cancellation of removal. See 8 U.S.C. §§ 1229a(c)(4)(B), 1229b(b)(1)(A), 1229b(d)(2).

The agency did not abuse its discretion or violate due process in denying for lack of good cause Calixto Hernandez’s motion for a continuance, where Calixto Hernandez has not explained what testimony or evidence he might have presented had the continuance been granted. See 8 C.F.R. §§ 1003.29, 1003.31(c); Ahmed, 569 F.3d at 1012 (factors considered in determining whether the denial of a continuance constitutes an abuse of discretion include the nature of the evidence excluded); Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error and substantial prejudice to prevail on a due process claim).

To the extent Calixto Hernandez contends the agency found him not credible, the record does not support this.

PETITION FOR REVIEW DENIED.

Footnotes

[2] 18-70025