CALIXTO HERNANDEZ v. BARR (2019)

MEMORANDUM **

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 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.