NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS FEB 15 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JULIO CESAR HENRIQUEZ, No. 19-71245 Agency No. Petitioner, A072-309-179 v.

MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

JULIO CESAR HENRIQUEZ, No. 21-1049 Agency No. Petitioner, A072-309-179 v.

MERRICK B. GARLAND, Attorney General,

Respondent.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. JULIO CESAR HENRIQUEZ-AMAYA, No. 23-219 Agency No. Petitioner, A038-833-650 v.

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Argued and Submitted February 5, 2024 Pasadena, California

Before: WARDLAW, FRIEDLAND, and SUNG, Circuit Judges. Concurrence by Judge WARDLAW.

In three consolidated petitions, Julio Cesar Henriquez-Amaya (“Henriquez”)

seeks review of three decisions of the Board of Immigration Appeals (“BIA”).

Henriquez was lawfully admitted to the United States in 1984. In 1985, he

was convicted of a sex crime involving a minor under California law, a conviction

that would later be vacated. In 1987, the Immigration and Naturalization Service

opened deportation proceedings against Henriquez based on his conviction. He

was deported; he then reentered the United States in 1989.

In 2015, the Department of Homeland Security (“DHS”) opened removal

2 23-219 proceedings against Henriquez, alleging that he was unlawfully present in the

United States under 8 U.S.C. § 1182(a)(6)(A)(i).1 Henriquez conceded

removability but applied for asylum, withholding of removal, and protection under

the Convention Against Torture.

The immigration judge (“IJ”) ruled that Henriquez’s applications were

barred by res judicata because they could have been raised in his prior deportation

proceedings. The BIA reversed in part and remanded for the IJ to consider

Henriquez’s applications to the extent they raised issues post-dating his prior

deportation. On remand, the IJ set a deadline for Henriquez to submit evidence in

support of his applications and scheduled an individual merits hearing. After the

deadline to submit evidence and about two weeks before the scheduled hearing,

Henriquez’s counsel filed a motion for a continuance, explaining that he had not

realized that the scheduled hearing was on the merits. A few days later, the IJ

denied the motion for a continuance. At the hearing six days after the denial,

counsel renewed the motion for a continuance, which the IJ again denied.

Henriquez then refused to testify. In a written decision, the IJ ruled that Henriquez

had abandoned his previously submitted applications by refusing to testify, and in

the alternative that the applications failed on the merits. The BIA affirmed the IJ’s

1 DHS did not seek to reinstate the prior deportation order because it initially could not locate the relevant file.

3 23-219 denial of a continuance and conclusion that Henriquez abandoned his applications,

without reaching the merits of the applications. The first petition at issue here,

No. 19-71245, seeks review of that BIA decision.

In 2016, Henriquez moved to vacate his 1985 state conviction and withdraw

his guilty plea under a state statute requiring a court to grant such a motion where a

noncitizen was not advised of the possible immigration consequences of pleading

guilty or nolo contendere. See Cal. Penal Code § 1016.5. In 2018, during the

pendency of Henriquez’s appeal of the removal order to the BIA, his state

conviction was vacated and the charge against him was dismissed.

About seven months later, and less than one month after the BIA issued its

decision in his removal proceedings, Henriquez moved to reopen the removal

proceedings before the BIA based on the vacatur of his conviction. The BIA

denied reopening, explaining that the vacatur of his conviction was not material to

the removal proceedings because his removability was not based on that

conviction. The second petition at issue here, No. 21-1049, seeks review of that

BIA decision.

A few months after the BIA denied his motion to reopen the removal

proceedings, Henriquez filed a motion to reopen the prior deportation proceedings

based on the vacatur of his conviction. The BIA denied that motion as well,

reasoning that it was untimely and that relief from the deadline was not warranted

4 23-219 due to Henriquez’s lack of diligence. The BIA also declined to reopen sua sponte

because Henriquez had not shown exceptional circumstances warranting

reopening. The third petition at issue here, No. 23-219, seeks review of that BIA

decision.

We have jurisdiction under 8 U.S.C. §§ 1252(a)(1), (b)(6), and we deny the

petitions.

1. In the first petition, No. 19-71245, Henriquez contends that the BIA erred

in concluding that he had not established good cause for a continuance and that by

refusing to testify he had abandoned his applications for asylum, relief under the

Convention Against Torture, and withholding of removal.

We review a denial of a request for a continuance for abuse of discretion.

Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009). On July 14, 2017, the IJ

scheduled an individual hearing on the merits of Henriquez’s applications for relief

for September 27, 2017. Henriquez’s counsel moved for a continuance on

September 14, 2017, stating that he had failed to realize that the hearing scheduled

for September 27, 2017, would be an individual hearing on the merits of

Henriquez’s claim. Counsel claimed responsibility for the mistake, acknowledged

that he had not filed any evidence or declarations, and requested “more time to file

additional evidence.” The motion did not specify the length of the requested

continuance, but implied that a hearing might be held as soon as October 3, 2017,

5 23-219 less than one week later than the scheduled hearing.

The IJ denied Henriquez’s request for a continuance on September 21, 2017,

stating that Henriquez and his counsel were served notice of the hearing, and

finding (without further explanation) the explanation of the purported mistake not

to be credible. At the hearing on September 27, 2017, Henriquez renewed his

motion for a continuance without further elaboration. The IJ orally denied the

renewed motion, reiterating that he found the written motion not credible. In a

subsequent written ruling, the IJ found the assertions that counsel was unaware of

the nature of the hearing not to be credible because counsel was aware of the

hearing itself and the only notice of the hearing included the nature of the hearing.

The BIA affirmed, acknowledging that the IJ had provided only an “abbreviated

time period” in which to obtain supporting evidence, but concluding that

Henriquez had not explained why he could not have prepared his testimony during

the 13-day period between when his counsel claimed he became aware of the

nature of the hearing and the scheduled hearing date.2

The BIA did not abuse its discretion in concluding that Henriquez failed to

establish good cause for a continuance. See 8 C.F.R. § 1003.29. We review the

2 Contrary to the IJ’s credibility determination, the BIA assumed that Henriquez’s counsel had, in fact, “credibly and in good faith overlooked” that the hearing would be a merits hearing, and assumed that the error was attributable solely to counsel. Henriquez does not contend that the BIA erred in making this assumption contrary to the IJ’s credibility finding.

6 23-219 denial of a continuance on “a case by case basis” and consider “a number of

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.” Ahmed, 569 F.3d at 1012. “[W]e have cautioned that a myopic

insistence upon expeditiousness in the face of a justifiable request for delay can

render [a noncitizen’s] statutory rights merely an empty formality.” Baires v.

I.N.S., 856 F.2d 89, 91 (9th Cir. 1988) (quotation marks omitted).

Here, the first factor weighs strongly against Henriquez because he has

never provided specific information about the evidence he would have presented

but for the denial of a continuance. Instead, Henriquez simply asserts that his case

is “extremely complicated.” Without any explanation of the information he would

have provided if granted a continuance, it is impossible to “evaluate[] the

importance of the evidence excluded as a result” of the denial of the continuance.

Ahmed, 569 F.3d at 1013–14.

The second factor weighs against Henriquez as well. Assuming, as the BIA

did, that the initial failure to recognize the nature of the scheduled hearing was

solely his counsel’s error, Henriquez still acted unreasonably because he failed

entirely to prepare to testify in support of his applications for relief and instead

merely renewed his request for a continuance without providing any new detail.

7 23-219 The third and fourth factors both weigh in Henriquez’s favor. The record

does not suggest that there would have been any significant inconvenience to the

court in granting a short continuance, and no prior continuance of the hearing in

question had been granted. But any tilt in Henriquez’s favor on the third and

fourth factors is far outweighed by the first factor and, for his renewed motion, the

second factor. Taken together, it was not an abuse of discretion to deny

Henriquez’s requests for continuances because he had not shown that his requests

to delay the hearing were “justifiable.” Baires, 856 F.2d at 91.

Once his renewed motion for a continuance was denied, Henriquez declined

to offer any testimony at the hearing on the merits of his applications for relief.

Henriquez contends that the BIA’s conclusion that he abandoned his applications

for relief was an abuse of discretion because his refusal to testify was caused by the

denial of the motion for a continuance. We review the conclusion that a noncitizen

abandoned his or her applications for relief for abuse of discretion. Gonzalez-

Veliz v. Garland, 996 F.3d 942, 948 (9th Cir. 2021).

As explained above, Henriquez did not show good cause for a continuance.

His desire for a continuance cannot itself excuse his failure to testify.3 Without a

sufficient reason to refuse to testify, it was not an abuse of discretion for the BIA to

3 Had Henriquez shown good cause for a continuance, his refusal to testify would not have constituted abandonment of his applications. See Kaur v. I.N.S., 237 F.3d 1098, 1101 (9th Cir. 2001).

8 23-219 conclude that he abandoned his applications. An applicant for asylum and

withholding of removal “need not testify on his or her own behalf, except to swear

to the truth of the application, and may rest on the application alone, subject to [the

Government’s] examination at the hearing.” Grava v. I.N.S., 205 F.3d 1177, 1180

(9th Cir. 2000) (emphases added); see 8 C.F.R. § 1240.49(c)(4)(iii) (an applicant

for asylum or withholding of removal “shall be examined under oath on his or her

application”).4 Henriquez unjustifiably refused to participate in a required step of

the adjudication of his applications for relief, so it was not an abuse of discretion to

conclude that he had abandoned his applications. At oral argument in our court,

Henriquez’s counsel suggested that he made a strategic decision to advise

Henriquez not to testify and suggested that strategy was necessary to preserve the

argument for a continuance. If so, it was a bad strategy, because it caused the

agency to reasonably (and foreseeably) consider the claim to have been abandoned,

and because it was not necessary to preserve the continuance argument.

Henriquez also asserts that going forward with a hearing for which he was

unprepared violated due process. We review claims of due process violations in

removal proceedings de novo and reverse “if the proceeding was so fundamentally

unfair” that the noncitizen “was prevented from reasonably presenting his case.”

4 Henriquez’s application for relief under the Convention Against Torture is an “application for withholding of removal.” 8 C.F.R. § 208.16(a).

9 23-219 Colmenar v. I.N.S., 210 F.3d 967, 971 (9th Cir. 2000) (quotation marks omitted).

A noncitizen must “show prejudice, which means that the outcome of the

proceeding may have been affected by the alleged violation.” Id. Without any

information about what further preparation he would have done with more time or

what evidence he would have presented at a later hearing, Henriquez’s bare

assertions that he was unprepared cannot show prejudice.

2. In the second petition, No. 21-1049, Henriquez contends that the BIA

erred in denying the motion to reopen that he filed in the current removal

proceedings. The BIA can deny a motion to reopen if the evidence offered in

support was not “previously unavailable” or is not “material evidence.” Fonseca-

Fonseca v. Garland, 76 F.4th 1176, 1180 (9th Cir. 2023) (quotation marks

omitted). We review denials of motions to reopen for abuse of discretion. Id.

The BIA denied Henriquez’s motion to reopen because vacatur of the state

conviction underlying his original deportation order was not previously unavailable

and was not material to the proceedings in which Henriquez filed the motion. It

was not an abuse of discretion for the BIA to conclude that the vacatur of

Henriquez’s conviction was not material to the removal proceedings because the

vacatur itself did not change his conceded removability.

Henriquez suggests that the 2018 vacatur of the conviction underlying his

prior deportation order is material to his current removal proceedings because the

10 23-219 vacatur means that he has always been a lawful permanent resident. Where a

noncitizen’s “lawful permanent resident status ends upon entry of a final

administrative order of deportation,” he is “restored to his prior status” when “the

BIA grants a motion to reopen, or a reviewing court holds that the BIA should

have granted a motion to reopen” that deportation proceeding. Bonilla v. Lynch,

840 F.3d 575, 589 (9th Cir. 2016) (explaining that, upon reopening, “the final

deportation order is vacated—that is, it is as if it never occurred”). But reopening

of the present removal proceedings would have had no such effect, because it

would not reopen the deportation proceedings that had been based on Henriquez’s

conviction. Because the vacatur itself did not restore Henriquez’s status as a

lawful permanent resident, it is not material to whether he unlawfully reentered the

country in 1989, which is the basis on which Henriquez conceded that he was

removable in the recent proceedings.

3. In the third petition, No. 23-219, Henriquez appeals the BIA’s denial of

his motion to reopen his prior deportation proceedings. The BIA denied that

motion to reopen as untimely. See 8 U.S.C. § 1229a(c)(7)(C)(i) (requiring that a

motion to reopen “be filed within 90 days of the date of entry of a final

administrative order of removal,” except in circumstances not applicable here).

The BIA concluded that an exception to the 90-day deadline was not warranted

because Henriquez had not been diligent in pursuing the motion to reopen. See 8

11 23-219 C.F.R. § 1003.2(c)(3)(v) (providing an exception to the 90-day deadline where

there is a material change in fact or law and the noncitizen exercised diligence in

pursuing the motion to reopen).

It was reasonable for the BIA to conclude that Henriquez had not been

diligent given that he had waited almost nine months after the BIA denied his

motion to reopen the removal proceedings before he filed his motion to reopen the

deportation proceedings (by which time nearly four years had passed since the

vacatur of his conviction).

The BIA also declined to reopen Henriquez’s deportation proceedings sua

sponte, explaining that Henriquez had not established an exceptional situation

warranting such reopening because he moved for reopening decades after his

deportation, sought to rely on equities developed after unlawfully reentering the

country, and was the subject of other ongoing removal proceedings. We have

jurisdiction over a denial of sua sponte reopening only “for the limited purpose of

reviewing the reasoning behind the decision[] for legal or constitutional error.”

Bonilla, 840 F.3d at 588. Henriquez contends that the BIA’s conclusion is unfair

in light of the vacatur of his conviction, but he does not point to any legal or

constitutional error in the BIA’s reasoning.

* * *

Henriquez’s counsel contended at oral argument that Henriquez “had a right

12 23-219 to have his day in court and to be heard for his asylum case and not be affected by

his counsel’s deficiencies, which were admitted to on the record.” No doubt

counsel’s deficiencies made it easier for the BIA to deny Henriquez relief. But

counsel has not identified any ground on which, under the applicable standards of

review, we could conclude that the BIA erred in considering the choices made by

Henriquez and his counsel.

For the foregoing reasons, the three petitions are DENIED.

13 23-219

FILED

FEB 15 2024

Henriquez-Amaya v. Garland, Nos. 19-71245, 21-1049, 23-219 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

WARDLAW, Circuit Judge, with whom SUNG, Circuit Judge, joins, concurring:

I concur with the court’s well-reasoned decision to deny the petitions in this

consolidated case. I write separately to underscore the ineffective assistance of

counsel that has resulted in the court’s decision today.

Julio Henriquez-Amaya (“Henriquez”) is a sixty-eight-year-old native and

citizen of El Salvador. With the apparent exception of less than one month in 1989,

Henriquez has lived in the United States since 1974—that is, for approximately half

a century and for nearly three-fourths of his life.1 Henriquez’s sole conviction, from

1985, was vacated in 2018. If the government deports Henriquez to El Salvador,

Henriquez will leave behind his U.S. citizen spouse, his U.S. citizen grandchildren,

his U.S. citizen children, and his U.S. citizen mother. On top of it all, we were

informed by counsel at oral argument that Henriquez is suffering from stomach

cancer.

The government inexplicably has elected to use its limited resources to

prioritize the deportation of a man whom the government acknowledges is not a

removal priority. But Henriquez would not be in this situation if it weren’t for the

errors of his lawyer. Henriquez’s lawyer has acknowledged that he made multiple

1 The record reflects that Henriquez first entered the United States in 1974, when he was nineteen years old. Henriquez was admitted for lawful permanent residency in 1984. It is unclear whether he departed at any time between his arrival in 1974 and his grant of lawful permanent residency status in 1984. 1 errors in Henriquez’s case. Most significantly, Henriquez’s lawyer failed to exercise

reasonable diligence to inform the BIA that Henriquez’s conviction, which formed

the basis of Henriquez’s 1988 deportation order, was vacated in 2018. Henriquez’s

lawyer learned about the vacatur in December 2018 while Henriquez’s direct appeal

to the BIA was pending. But the lawyer did not ask the BIA to take notice of the

vacatur. Instead, he waited until the BIA dismissed Henriquez’s direct appeal in

April 2019 before filing a motion to reopen in May 2019—approximately five

months after he first learned that the conviction had been vacated.

Even after the BIA in October 2021 informed Henriquez’s lawyer that he had

improperly filed the motion to reopen in the removal proceedings rather than the

deportation proceedings, Henriquez’s lawyer unreasonably waited an additional nine

months before filing a motion to reopen in the correct proceedings. The BIA was

within its right to deny that motion to reopen. But it likely would have granted the

motion had Henriquez’s lawyer exercised reasonable diligence in informing the BIA

that the conviction underlying Henriquez’s deportation order had been vacated.

Henriquez’s lawyer acknowledged at oral argument that his performance in

this case has been deficient. Based on his lawyer’s deficient and undoubtedly

prejudicial performance, Henriquez may be entitled to file a motion to reopen before

the BIA in the deportation proceedings with an accompanying request for a stay of

removal. The government may even consider joining any such motion or request.

2 Although “[m]otions to reopen are disfavored due to the strong public interest in

bringing litigation to a close,” Sarkar v. Garland, 39 F.4th 611, 621 (9th Cir. 2022)

(internal quotation marks omitted), that interest in finality must be balanced against

the enormous public interests in keeping families together, supporting long-term

residents of the United States (especially those of older age and ill health), and

avoiding the manifest injustice attendant to deportations based on ineffective

assistance of counsel. See Avagyan v. Holder, 646 F.3d 672, 677 (9th Cir. 2011) (“If

the ineffective assistance of an alien’s counsel prevents him from timely filing a

motion to reopen, counsel has prevented the alien from reasonably presenting his

case and denied him due process.”); see also Iturribarria v. INS, 321 F.3d 889, 898

(9th Cir. 2003) (“[A] motion to reopen is the only avenue ordinarily available to

pursue ineffective assistance of counsel claims.”).

I respectfully concur.

3