                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                               MAY 14 2014

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

MARIN PIO-PAHUA, AKA Martin Pio,                 No. 08-74157

              Petitioner,                        Agency No. A070-132-092

  v.
                                                 MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


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

                            Submitted May 12, 2014**
                             San Francisco, California

Before: D.W. NELSON, McKEOWN, and M. SMITH, Circuit Judges.

       Marin Pio-Pahua, a citizen of Mexico, seeks review of a final order of

removal issued by the Board of Immigration Appeals (“BIA”) on August 29, 2008,

upholding the Immigration Judge (“IJ”)’s denial of Pio-Pahua’s application for

cancellation of removal and motion for a continuance of his removal hearing. Pio-

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Pahua appeals the denial of his motion for a continuance.

      The BIA did not abuse its discretion when it upheld the IJ’s denial of Pio-

Pahua’s motion for a continuance. The regulations governing immigration

proceedings permit IJs to grant continuances for “good cause shown.” 8 C.F.R. §

1003.29. Although the regulations do not define “good cause,” we have held that

“[i]n deciding whether denial of the alien’s request would violate his statutory right

to a reasonable opportunity to present evidence on his own behalf, the judge must

consider the nature of the evidence to be presented and its importance to the alien’s

claim.” Baires v. I.N.S., 856 F.2d 89, 92 (9th Cir. 1988). In Baires, we noted that

other factors might be important to the good cause determination, including delay

attributable to unreasonable conduct on the part of the alien, inconvenience to the

immigration court, and the number of prior continuances granted and their

duration, without enumerating a conclusive list. Id. at 92–93.

      Pio-Pahua requested this fifth continuance in order to demonstrate that he

was eligible for cancellation of removal under 8 U.S.C. § 1229b(b) on the ground

that his removal would cause “exceptional and extremely unusual hardship” to his

U.S. citizen son.

      The BIA sustained the IJ’s determination that Pio-Pahua had failed to

demonstrate that his removal would cause his son the hardship the statute requires.


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Pio-Pahua appears not to have sought any legal right to interact with his son until

2007, in the midst of his immigration proceedings and when his son was twelve

years old. He had failed to pay any child support until 2002, and at the time he

filed the custody petition, had not seen his son for a year and a half. The IJ denied

the continuance motion because it was grounded in the “speculative possibility”

that a court “might” order visitation. The IJ found that Pio-Pahua had not

demonstrated “that the child would suffer” the “exceptional and extremely

unusual” hardship that the statute requires since, “as matters have stood for several

years,” he “ha[d] not been visiting the child at all.”

      The BIA held that the IJ had properly denied Pio-Pahua’s motion on the

ground that even if Pio-Pahua “succeed[ed] in obtaining the evidence he sought, it

was unlikely to meet his burden of proving the requisite hardship.” Although the

Board reversed the IJ’s credibility findings, the Board made an independent

determination with respect to the continuance. Thus the IJ’s credibility findings

cannot be said to have “infected” the continuance determination as Pio-Pahua

suggests. The record demonstrates that the BIA “consider[ed] the nature of the

evidence to be presented, and its importance to the alien’s claim.” Baires, 856 F.2d

at 92. As such, there was no abuse of discretion.

      Pio-Pahua’s claim that the denial of his motion for a continuance violated


                                          -3-
    his due process rights and prejudiced his application for cancellation of removal is

    simply an attack on the IJ’s discretionary decision reframed in a constitutional

    rubric. Because Pio-Pahua has failed to establish that the proceedings before the IJ

    were “so fundamentally unfair that [he] was prevented from reasonably presenting

    his case,” we deny these claims. Colmenar v. I.N.S., 210 F.3d 967, 971 (9th Cir.

    2000) (internal citations omitted).

          PETITION DENIED.



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