NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 22 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT SAMUEL ALEJANDRO LUNA, Nos. 13-74015 15-73357 Petitioner, Agency No. A205-317-321 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted August 25, 2023 Pasadena, California Before: BERZON, RAWLINSON, and BRESS, Circuit Judges. Samuel Alejandro Luna (Luna), a native and citizen of Mexico, petitions for review of a decision of the Board of Immigration Appeals (BIA) dismissing his appeal of the denial of withholding of removal and protection under the Convention Against Torture (CAT). Luna also petitions for review of the BIA’s affirmance of the denial of his requested continuance and its denial of his motion to reopen. We * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. have jurisdiction under 8 U.S.C. § 1252(a), and we deny the petition. “[We] review[] the factual findings of the [BIA] for substantial evidence.” Gutierrez-Alm v. Garland, 62 F.4th 1186, 1194 (9th Cir. 2023) (citation omitted). We review the agency’s denial of a motion to reopen for an abuse of discretion. See Cui v. Garland, 13 F.4th 991, 995 (9th Cir. 2021). We also review the denial of a continuance for an abuse of discretion. See Arizmendi-Medina v. Garland, 69 F.4th 1043, 1051 (9th Cir. 2023). Constitutional claims are reviewed de novo. See Vargas-Hernandez v. Gonzales, 497 F.3d 919, 927 (9th Cir. 2007). 1. The BIA did not abuse its discretion in affirming the denial of Luna’s requested continuance on the day of his merits hearing on the grounds that Luna failed to establish good cause. See Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009). Luna stated that he could not proceed with his hearing because he had had a stomach infection and was still not feeling well, and because he had “not had the time to speak with his attorney.” However, the Immigration Judge (IJ) acted within his discretion in determining that these reasons did not establish good causes. See id. (“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. . . .) (citation and internal quotation marks omitted). In addition, the IJ had previously granted a continuance. See Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1247 (9th Cir. 2008) (per curiam) (holding that the IJ did not abuse his discretion 2 in denying a continuance when the IJ had previously granted a continuance). Finally, Luna failed to identify any evidence that was not considered due to the IJ’s denial of his request. See Arizmendi-Medina, 69 F.4th at 1051. (explaining that this court may consider the nature of the evidence when determining whether the IJ abused his discretion in denying a continuance). Denial of the continuance did not violate Luna’s due process rights, as …
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