                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                        MAR 5 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

HUGO HERNANDEZ CEREN, AKA Hugo                  No. 18-72612
Ceren,
                                                Agency No. A073-956-722
                Petitioner,

 v.                                             MEMORANDUM*

WILLIAM P. BARR, Attorney General,

                Respondent.

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

                     Argued and Submitted February 12, 2020
                              Pasadena, California

Before: BERZON, TALLMAN, and R. NELSON, Circuit Judges.

      Hugo Hernandez Ceren (“Ceren”), a native and citizen of El Salvador, seeks

review of the decision of the Board of Immigration Appeals (“BIA”) to affirm the

immigration judge’s (“IJ”) denial of his request for asylum, withholding of

removal, and protection under the Convention Against Torture from El Salvador

and Mexico. We deny his petition for review.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                                          I

      Ceren does not contest that he is ineligible for asylum from El Salvador and

Convention Against Torture protection from both El Salvador and Mexico. Those

issues are therefore waived. See, e.g., Corro-Barragan v. Holder, 718 F.3d 1174,

1177 n.5 (9th Cir. 2013).

                                         II

      Ceren disputes the IJ’s determination that he was convicted of a “particularly

serious crime” and therefore is ineligible for withholding of removal. INA §§

208(b)(2)(A)(ii), 241(b)(3)(B)(ii), 8 U.S.C. §§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii).

We review an agency’s decision that a crime was “particularly serious” for abuse

of discretion. Arbid v. Holder, 700 F.3d 379, 383 (9th Cir. 2012) (per curiam).

Review is “limited to ensuring that the agency relied on the appropriate factors and

proper evidence to reach [its] conclusion.” Avendano-Hernandez v. Lynch, 800

F.3d 1072, 1077 (9th Cir. 2015) (internal quotation marks omitted). Because the

BIA adopted the IJ’s decision, citing Matter of Burbano, 20 I. & N. Dec. 872, 874

(BIA 1994), the IJ’s particularly serious crime determination is the subject of our

review. Abebe v. Gonzales, 432 F.3d 1037, 1040 (9th Cir. 2005) (en banc).

      The IJ employed the requisite case-by-case analysis to determine that

Ceren’s conviction for stalking under California Penal Code § 646.9(b) was a

particularly serious crime. In conducting her analysis, the IJ considered all


                                          2
relevant factors: (1) the nature of the crime, including that it involved threats

against a person rather than property; (2) the fact that Ceren was given a “three-

year prison sentence”; and (3) the underlying circumstances of the offense. See

Alphonsus v. Holder, 705 F.3d 1031, 1041 (9th Cir. 2013).

      The dissent misunderstands the original sentence imposed by the California

Superior Court when Ceren was convicted of felony stalking under California

Penal Code § 646.9(b). Ceren was sentenced to three years’ imprisonment for his

conviction for stalking; execution of the prison sentence was suspended and he was

placed on formal probation for a period of three years and ordered to serve 365

days in county jail. When he later violated his probation in 2011, the court

returned him to prison to serve the entirety of the three-year sentence. The IJ did

not err in stating that Ceren’s felony conviction led to a three-year sentence.

Generally, under the Immigration and Nationality Act, any reference to a

“sentence” also includes a suspended sentence. See 8 U.S.C. §§ 1101(a)(48)(B),

1231(b)(3)(B)(ii). Moreover, Ceren ultimately served his three-year prison

sentence after violating his probation by again contacting his ex-wife, repeating the

conduct that led to his original conviction.

      This case is not governed by Flores-Vega v. Barr, 932 F.3d 878 (9th Cir.

2019), which held that the BIA abused its discretion in part by considering the

potential penalty rather than the sentence imposed, id. at 885, or by Avendano-


                                           3
Hernandez, which held that the sentence for a probation violation cannot be

considered a “sentence enhancement,” 800 F.3d at 1078. Here, Ceren was both

originally sentenced to, and actually served, a three-year prison term and the IJ did

not consider the previously suspended sentence an enhancement as punishment for

the probation violation. The IJ had all of the relevant court records before her,

which recount Ceren’s serious actions in threatening to kill his ex-wife, the “more

than a hundred messages” he sent to harass her, and his repeated violation of a

judicial restraining order. The IJ therefore did not abuse her discretion in

determining that Ceren’s conviction for stalking was a particularly serious crime.

                                         III

      The IJ also did not abuse her discretion in denying Ceren’s second motion to

continue. See Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1246–47 (9th Cir. 2008)

(per curiam). At the end of the first day of Ceren’s hearing on March 14, after all

testimony had been taken, the IJ continued the proceedings to March 22 in order to

issue her oral decision. She also allowed Ceren’s counsel that extra time to submit

properly translated copies of several documents to the court. Ceren’s counsel did

not appear on March 22 and Ceren requested a second continuance, which was

denied. The properly translated documents were never submitted to the IJ or the

BIA. Because the hearing was originally continued for the limited purpose of

allowing the IJ to render her decision and Ceren was not prejudiced by the absence


                                          4
of his attorney during the reading of the IJ’s determination, he also was not denied

a right to counsel. See Gomez-Velazco v. Sessions, 879 F.3d 989, 994–95 (9th Cir.

2018).

      The petition for review is DENIED.




                                         5
                                                                         FILED
Hernandez Ceren v. Barr, No. 18-72612                                     MAR 5 2020
                                                                     MOLLY C. DWYER, CLERK
BERZON, Circuit Judge, dissenting:                                     U.S. COURT OF APPEALS



      I concur in Part I of the memorandum disposition, but respectfully dissent

from Parts II and III. I would grant the petition in part and remand for further

proceedings.

      1. This Court’s review of a “particularly serious crime” determination is

“limited to ensuring that the agency relied on the ‘appropriate factors’ and ‘proper

evidence’ to reach [its] conclusion.” Avendano-Hernandez v. Lynch, 800 F.3d F.3d

1072, 1077 (9th Cir. 2015). Here, the IJ relied on inaccurate evidence. The IJ

erroneously stated that Ceren was “sentenced to three years in prison,” to support

her conclusion that the crime for which he was sentenced was “particularly

serious.” Ceren was in fact given a partially suspended sentence for his original

conviction, comprised of one year in county jail and three years of probation.

Almost two years later, Ceren was sentenced to three years in state prison for

violation of his probation.

      The IJ either failed to acknowledge or did not realize that Ceren was

originally given a suspended sentence; never recognized that Ceren was sentenced

to time in prison only in response to a probation violation; and did not describe or

consider the seriousness of the conduct underlying the probation violation—which

was mailing one card to his ex-wife.

                                          1
      Even if it is appropriate to consider the sentence imposed for a probation

violation when it is for the same or similar conduct as the original conviction, there

is no indication that the IJ or the BIA realized that the sentence relied upon was for

a probation violation. The IJ does not mention that Ceren violated his probation or

discuss the conduct underlying the probation violation in rendering her decision.

Compare Avendano-Hernandez, 800 F.3d at 1078 (holding any error in

considering the sentence for violation of probation harmless because the BIA

properly identified Avendano-Hernandez’s original sentence).

      Relatedly, the IJ did not appropriately consider the “type of sentence

imposed” for Ceren’s original conviction, which was a suspended sentence.

Receiving a suspended sentence, as opposed to a sentence of incarceration, can

affect whether a crime is “particularly serious.” Flores-Vega v. Barr emphasized

that “neither the IJ nor the BIA even mentioned, in analyzing the Frentescu factors,

that Flores-Vega received an entirely suspended one-year sentence.” 932 F.3d 878,

885 (9th Cir. 2019). In Matter of Frentescu, the case that established the relevant

factors for determining if a crime was “particularly serious,” the BIA noted that

“the applicant received a suspended sentence after spending a relatively short

period of time in prison (3 months). Such sentence, as viewed by the state circuit

court judge, reflects upon the seriousness of the applicants danger to the

community.” 18 I. & N. Dec. at 247. These cases indicate that the IJ must consider

                                          2
the sentence imposed for the original conviction, including whether that sentence

was suspended, in assessing whether the crime was “particularly serious.”

      I would hold that the IJ abused her discretion by failing to consider the

appropriate sentencing factors when making her “particularly serious crime”

determination.

      2. I would also hold that the IJ abused her discretion and denied Ceren the

right to counsel when she refused to grant his motion to continue at the March 22,

2018 continued merits hearing. “Absent a showing of clear abuse, we typically do

not disturb an IJ’s discretionary decision not to continue a hearing. Nonetheless,

we cannot allow a myopic insistence upon expeditiousness to render the right to

counsel an empty formality.” Biwot v. Gonzales, 403 F.3d 1094, 1099 (9th Cir.

2005) (internal citation and quotation marks omitted).

      At the March 22, 2018 continued merits hearing, Ceren appeared without

counsel. Despite understanding that Ceren’s lawyer was ill, that Ceren’s lawyer

expected to finish her closing arguments and submit translated documents for

consideration at the continued hearing, and that the hearing would have to be

postponed for only a few weeks to allow Ceren to appear with counsel, the IJ

denied Ceren’s motion to continue as not “supported by good cause because [she

was] not certain that it would be fruitful.”




                                           3
       A petitioner is not required to show that he was prejudiced by the absence of

his attorney at a merits hearing because “denial of counsel in an immigration

proceeding is serious enough to be reversible without a showing of error.” Montes-

Lopez v. Holder, 694 F.3d 1085, 1093-94 (9th Cir. 2012). I therefore would hold

that the IJ abused her discretion by denying Ceren’s motion to continue and so

violating his right to counsel. 1

       For those reasons, I would deny the petition in part, grant the petition in part,

and remand for further proceedings.




       1
        Gomez-Velazco v. Sessions held that petitioners are required to demonstrate
prejudice when they are denied counsel during an initial interaction with DHS
officers, which is a “discrete stage” of expedited removal proceedings. 879 F.3d
989, 994 (9th Cir. 2018). Here, Ceren was denied counsel at his continued merits
hearing, not a preliminary or nonsubstantive proceeding.
                                           4
