Ramales De Rueda v. Holder

FILED

NOT FOR PUBLICATION MAR 28 2011

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS

FOR THE NINTH CIRCUIT

ESTER RAMALES DE RUEDA, No. 06-74998

Petitioner, Agency No. A079-801-001

v.

MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,

Respondent.

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

Submitted February 7, 2011** Pasadena, California

Before: PREGERSON, WARDLAW, and BEA, Circuit Judges.

Esther Ramales De Rueda ('Rueda'), a native and citizen of Mexico, seeµs

review of the Board of Immigration Appeals' ('BIA') order affirming her

removability for alien smuggling under 8 U.S.C. y 1182(a)(6)(E)(i). We have

jurisdiction under 8 U.S.C. y 1252, and we grant the petition for review.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). The BIA erred as a matter of law in concluding that the Immigration…

MEMORANDUM **

Esther Ramales De Rueda (“Rueda”), a native and citizen of Mexico, seeks review of the Board of Immigration Appeals’ (“BIA”) order affirming her removability for alien smuggling under 8 U.S.C. § 1182 (a)(6)(E)(i). We have jurisdiction under 8 U.S.C. § 1252 , and we grant the petition for review.

The BIA erred as a matter of law in concluding that the Immigration Judge (“IJ”) properly denied Rueda a brief continuance, when the record makes clear that the sole reason for doing so was that she “could take an appeal, you know.” 1 Although the decision to grant or deny a continuance is within “the sound discretion of the judge and will not be overturned except on a showing of clear abuse[,]” Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1247 (9th Cir.2008), this discretion has its limits. Relevant factors include: “(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 *704 granted.” Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir.2009).

Here, the evidence excluded was “undeniably important.” Id. at 1013 (internal…

dissenting:

I disagree with the majority that the Immigration Judge (“IJ”) abused his discretion when he denied Ramales De Rueda’s (“Rueda”) motion for a continuance. “The decision to grant or deny the continuance is within the sound discretion of the judge and will not be overturned except on a showing of clear abuse.” Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir.2009). I would hold the IJ did not clearly abuse his discretion in this case.

*705 In reaching the conclusion that the IJ abused his discretion in denying Rueda’s motion for a continuance, the majority misconstrues the record. The majority contends Rueda sought the continuance to develop the evidence to show that Rueda was not removable under the alien smuggling statute, 8 U.S.C. § 1182 (a)(6)(E)(i). However, Rueda’s counsel requested a continuance for the sole purpose of giving Rueda another chance to ask the Department of Homeland Security (“DHS”) to exercise its unlimited discretion not to prosecute. 1 In fact, when she made this request, Rueda had already twice conceded her removability as an alien smuggler and her ineligibility for cancellation of removal relief.

After these concessions, the IJ asked Rueda’s…