                                                                            FILED
                            NOT FOR PUBLICATION                             MAR 28 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



ESTER RAMALES DE RUEDA,                          No. 06-74998

              Petitioner,                        Agency No. A079-801-001

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

              Respondent.



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

                            Submitted February 7, 2011**
                               Pasadena, California

Before: PREGERSON, WARDLAW, and BEA, Circuit Judges.

       Esther Ramales De Rueda ('Rueda'), a native and citizen of Mexico, seeµs

review of the Board of Immigration Appeals' ('BIA') order affirming her

removability for alien smuggling under 8 U.S.C. y 1182(a)(6)(E)(i). We have

jurisdiction under 8 U.S.C. y 1252, and we grant the petition for review.

        *
             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).
         The BIA erred as a matter of law in concluding that the Immigration Judge

('IJ') properly denied Rueda a brief continuance, when the record maµes clear that

the sole reason for doing so was that she 'could taµe an appeal, you µnow.'1

Although 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[,]' Sandoval-Luna v. Muµasey, 526 F.3d 1243, 1247 (9th Cir. 2008), this

discretion has its limits. Relevant factors include: '(1) the nature of the evidence

excluded as a result of the denial of the continuance, (2) the reasonableness of the

immigrantùs conduct, (3) the inconvenience to the court, and (4) the number of

continuances previously granted.' Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir.

2009).

         Here, the evidence excluded was 'undeniably important.' Id. at 1013

(internal quotation marµs omitted). Rueda sought the continuance to develop the

evidence relating to Rueda's nominal role in the alleged smuggling scheme and to

asµ the Department of Homeland Security to reconsider its prosecution of Rueda's

case. The smuggling scheme itself was the basis for the IJ's peremptory order of

removal; further evidence may have demonstrated that Rueda was not, in fact,

         1
        The IJ continued 'Everybody taµes an appeal. When I came in in the
morning, I say good morning Ms. Trial Attorney and she says, I reserve my right
of appeal, Your Honor.' Perhaps this would not be the state of affairs if the IJ
permitted development of the record before ordering removal, or tooµ the time to
consider factors relevant to the grant or denial of a continuance.
removable as charged.2 As it stands, there was no evidence in the record

whatsoever relating to Rueda's alleged participation.

      As to the second factor, there is no evidence that Rueda's counsel acted

unreasonably in requesting this continuance. Rueda's counsel did not intentionally

delay in requesting a continuance; the government did not issue its decision

indicating that it intended to pursue removal until the day before Rueda's hearing

before the IJ. The government did not oppose the motion; nor did the IJ indicate

the court would be inconvenienced in any way by granting one. See, e.g. id.

('There would have been no inconvenience to the government . . . . Indeed, the

government did not oppose [the] request. Nor does the record reflect any specific

inconvenience to the administrative court . . . .'). Rueda had not requested any

previous continuances, and her counsel was 'surprised' when his request for

prosecutorial discretion was denied in light of the recent grant of a similar request.

Thus, all four of the relevant factors favored the grant of a continuance.

      The IJ failed to provide any reasoned basis for his denial of Rueda's request

(other than a seeming exasperation with appeals). The only reason the IJ stated


      2
        We disagree with the dissent that the record establishes that Rueda's
attorney conceded her removability as charged. Moreover, the record reflects that
Rueda's counsel raised a question as to the extent of Rueda's participation in the
smuggling incident when asµing the IJ to grant a brief continuance, stating that her
'role was pretty nominal in the incident itself.'

                                           3
was Rueda's right to appeal and simultaneously request prosecutorial discretion.

However, Rueda would not have needed to appeal the IJ's decision if she had been

granted a brief continuance to develop the evidence to support reconsideration.

Thus, as in Ahmed, the IJ abused his discretion by 'failing to taµe into account any

of the facts and circumstances of [Rueda's] case that were relevant to the grant or

denial of a continuance.' Id. at 1014.

      The BIA subsequently erred by affirming the denial of the continuance

without considering any of the relevant factors, or even noting the IJ's failure to

consider them.3

      Petition GRANTED and REMANDED.




      3
        Because we grant the petition for review with respect to this claim, we do
not address Rueda's remaining claims as to (1) whether her removability was
properly established, and (2) whether she was eligible for cancellation of removal.

                                           4
                                                                              FILED
Ramales De Rueda v. Holder, No. 06-74998                                      MAR 28 2011

                                                                         MOLLY C. DWYER, CLERK
BEA, Circuit Judge, dissenting:                                           U.S . CO U RT OF AP PE A LS




      I disagree with the majority that the Immigration Judge ('IJ') abused his

discretion when he denied Ramales De Rueda's ('Rueda') motion for a

continuance. '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.' Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009). I would hold the

IJ did not clearly abuse his discretion in this case.

      In reaching the conclusion that the IJ abused his discretion in denying

Rueda's motion for a continuance, the majority misconstrues the record. The

majority contends Rueda sought the continuance to develop the evidence to show

that Rueda was not removable under the alien smuggling statute, 8 U.S.C.

y 1182(a)(6)(E)(i). However, Rueda's counsel requested a continuance for the sole

purpose of giving Rueda another chance to asµ the Department of Homeland

Security ('DHS') to exercise its unlimited discretion not to prosecute.1 In fact,

when she made this request, Rueda had already twice conceded her removability as

an alien smuggler and her ineligibility for cancellation of removal relief.



      1
         Rueda had made a previous request that the DHS exercise its prosecutorial
discretion in her case and not prosecute Reuda, which the DHS declined.

                                            1
      After these concessions, the IJ asµed Rueda's attorney if he had any

suggestions for the IJ. Counsel replied that he needed a short continuance to asµ

the DHS to reconsider its previous denial for prosecutorial discretion. At the close

of the hearing, Rueda's counsel once again stated that he is requesting a

continuance to 'revive the argument before the Service.' At no point did counsel

assert, as the majority concludes, that he needed more time to develop the evidence

relating to Rueda's nominal role in the alleged smuggling scheme.2

      Furthermore, the DHS had already denied Rueda's earlier request for

prosecutorial discretion. In light of these facts, I would hold the IJ did not abuse

his discretion in denying a continuance because Rueda did not demonstrate good

cause. See 8 C.F.R. y 1003.29 (an IJ may grant a motion for continuance for good

cause shown). Rueda failed to establish good cause for her continuance request

because a continuance was not required to accomplish her objective. She could

continue to seeµ DHS's exercise of prosecutorial discretion while her appeal before

the BIA was pending.

      Because I would conclude the IJ did not abuse his discretion when he denied



      2
          Although Rueda's counsel did state Rueda's role in the smuggling incident
was 'pretty nominal' when he asµed for a continuance, he never contended that
Rueda was not removable as an alien smuggler and, in fact, made this statement
after already conceding Rueda's removability.

                                           2
Rueda's motion for a continuance, I would deny the petition for review. I therefore

respectfully dissent.




                                         3
