                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 14 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



CRISOFORO CEBRERRO DE LA                         No. 07-72518
CRUZ,
                                                 Agency No. A098-177-425
              Petitioner,

  v.                                             MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



CRISOFORO CEBRERRO DE LA                         No. 08-71573
CRUZ,
                                                 Agency No. A098-177-425
              Petitioner,

  v.

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



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




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                            Submitted October 4, 2010 **
                               Seattle, Washington

Before: THOMAS and M. SMITH, Circuit Judges, and EZRA, District Judge.***

      Petitioner Crisoforo Cebrerro de la Cruz is a Mexican citizen who has

conceded that he is removable from the United States. De la Cruz contends,

however, that the Immigration Judge (IJ) abused his discretion and violated de la

Cruz’s due process rights by denying a motion to continue removal proceedings

pending the Department of Homeland Security’s (DHS’s) disposition of his request

for prosecutorial discretion. As the facts and procedural history are familiar to the

parties, we do not recite them here except as necessary to explain our disposition.

We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition.

      “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.’” Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009) (quoting

Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1247 (9th Cir. 2008) (per curiam)).

“When reviewing an IJ’s denial of a continuance, we consider a number of factors,



        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.

                                          -2-
including: (1) the nature of the evidence excluded [or other statutory right

impaired] 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. In light of these four

factors, we conclude that the IJ did not commit “clear abuse” by denying de la

Cruz’s second motion to continue removal proceedings.

      First, de la Cruz had no “statutory right” that was “effectively pretermitted”

by the IJ’s action. Contra Ahmed, 569 F.3d at 1013. De la Cruz sought a

continuance in order to allow DHS to act on his request for prosecutorial

discretion. However, DHS’s exercise of prosecutorial discretion is purely

discretionary. See Ira J. Kurzban, Kurzban’s Immigration Law Sourcebook 326

(12th ed. 2010) (“Prosecutorial discretion includes a broad spectrum of

discretionary enforcement decisions including: whether to charge an individual;

what charges to bring; to drop any charges in an ongoing case; and to settle a case

by plea bargain.”); see also Reno v. American-Arab Anti-Discrimination

Committee, 525 U.S. 471, 483 (1999) (“At each stage the Executive has discretion

to abandon the endeavor[.]”). Unlike the petitioner in Ahmed, who had a statutory

right to receive a decision on his pending visa appeal, de la Cruz had no statutory




                                          -3-
right to receive a decision on his pending request for prosecutorial discretion. See

Ahmed, 569 F.3d at 1013.

      Second, de la Cruz’s conduct contributed in part to his need for a

continuance. Despite receiving a Notice to Appear nearly five months before the

initial hearing date, he waited until three days before the hearing to request

prosecutorial discretion. Accordingly, “[t]he need for a continuance . . . result[ed]”

at least in part “from . . . unreasonable conduct on [de la Cruz’s] part.” Id.

      With respect to the third and fourth factors, de la Cruz had already received

a prior continuance and was essentially asking the IJ for an open-ended

continuance into the indefinite future. As this court has previously noted, “an IJ

cannot be expected to continue a case indefinitely.” Id. at 1014.

      In light of these considerations, the IJ did not abuse his discretion by

denying the motion for a continuance. See Sandoval-Luna, 526 F.3d at 1247

(holding that IJ did not abuse its discretion by denying petitioner’s request for

continuance in order to benefit from potential future regulatory changes).

      De la Cruz did not suffer a due process violation. He was represented by

counsel and received a full and fair opportunity to present evidence and legal

arguments to the IJ. See, e.g., Vargas-Hernandez v. Gonzales, 497 F.3d 919,

926–27 (9th Cir. 2007) (“Where an alien is given a full and fair opportunity to be


                                          -4-
represented by counsel, to prepare an application for . . . relief, and to present

testimony and other evidence in support of the application, he or she has been

provided with due process.”). In addition, de la Cruz has not shown that he was

prejudiced by the IJ’s refusal to continue proceedings because he has not shown

that, had proceedings been continued, DHS would have exercised its prosecutorial

discretion in his favor. See Ali v. Mukasey, 524 F.3d 145, 148, 150 (2d Cir. 2008)

(rejecting petitioners’ argument that they had been “depriv[ed] . . . of the

opportunity to benefit from the favorable exercise of prosecutorial discretion”

because they failed to show any prejudice resulting from the lost opportunity).

      Finally, de la Cruz has waived any arguments regarding the Board of

Immigration Appeals’ denial of his motion to reopen proceedings. Ghahremani v.

Gonzales, 498 F.3d 993, 997 (9th Cir. 2007) (“[A]n issue referred to in the

appellant’s statement of the case but not discussed in the body of the opening brief

is deemed waived.” (internal quotation marks and citation omitted)).




PETITION DENIED.




                                           -5-
