Jose Hernandez Rodriguez v. Merrick Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 23 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JOSE ALFREDO HERNANDEZ No. 20-70021 RODRIGUEZ, Agency No. A200-906-717 Petitioner, v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Immigration Judge Argued and Submitted August 10, 2022 Anchorage, Alaska Before: S.R. THOMAS, McKEOWN, and CLIFTON, Circuit Judges. Jose Alfredo Hernandez Rodriguez (“Hernandez”), a native of Mexico, seeks review of a decision of the Immigration Judge (“IJ”) denying Hernandez’s request for a continuance to obtain counsel and affirming the asylum officer’s determination that Hernandez failed to establish a reasonable fear of torture. We review the former issue de novo and the latter issue for substantial evidence. Orozco-Lopez v. Garland, * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 11 F.4th 764, 774 (9th Cir. 2021) (continuance); Lalayan v. Garland, 4 F.4th 822, 840 (9th Cir. 2021) (reasonable fear). We have jurisdiction pursuant to 8 U.S.C. § 1252, and we deny the petition. 1. The IJ did not violate Hernandez’s statutory right to counsel in his reasonable fear review proceeding by denying his request for a continuance to obtain counsel. Hernandez has a statutory right to counsel. Orozco-Lopez, 11 F.4th at 777 (holding that non-citizens whose removal orders have been reinstated are statutorily entitled to counsel under 8 U.S.C. § 1362 at their reasonable fear hearings before an IJ). However, this statutory right to counsel is cabined by 8 C.F.R. § 208.31(g)’s requirement that in the absence of exceptional circumstances, the reasonable fear review hearing shall be conducted by the IJ within ten days of the filing of the Notice of Referral to the IJ. Orozco-Lopez, 11 F.4th at 777. This does not require a non- citizen to have counsel before an IJ can proceed, but only that a non-citizen “must at least be informed of the entitlement to counsel and have an opportunity to seek counsel within § 208.31(g)(1)’s constraints.” Id. at 778–79. Hernandez argues he was denied his statutory right to counsel when he was denied a one-day continuance to retain counsel within the ten-day period set out in 8 C.F.R. § 208.31(g). We conclude that Hernandez was given “reasonable time to locate counsel,” Arrey v. Barr, 916 F.3d 1149, 1158 (9th Cir. 2019) (citations omitted), and that Hernandez did not show good cause for a continuance. Hernandez 2 was advised of his right to counsel in advance of the hearing, secured counsel for a bail hearing the same day without providing an explanation for why he was unable to obtain an attorney for his reasonable fear hearing, and failed to explain how a continuance would allow him to return with counsel within the ten-day period. He had at least a week to secure counsel for this hearing and did not demonstrate diligent efforts to secure an attorney. See United States v. Moriel-Luna, 585 F.3d 1191, 1201–02 …

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