Unpublished Disposition, 931 F.2d 897 (9th Cir. 1991)

MEMORANDUM^** 

Jose Trinidad Rodriguez-Guillen, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals' ("BIA") decision dismissing his appeal and affirming the immigration judge's ("IJ") order of deportation against Rodriguez-Guillen for having been convicted of violating a law "relating to a controlled substance." See 8 U.S.C. § 1251(a) (11). We have jurisdiction pursuant to 8 U.S.C. § 1105a(a) and deny the petition for review.

Rodriguez-Guillen contends that the BIA erred in affirming the IJ's finding that "good cause" did not exist for granting Rodriguez-Guillen a continuance to file a motion in state court to set aside his drug trafficking conviction.

In the context of immigration hearings, the decision to grant or deny a continuance is within the discretion of the IJ who may grant a continuance upon a showing of "good cause." 8 C.F.R. Secs. 3.27, 242.13; see Rios-Barrios v. INS, 776 F.2d 859, 862 (9th Cir. 1985) (citation omitted). We decide whether a denial of a continuance constitutes an abuse of discretion on a case to case basis according to the facts and circumstances of each case. See Baires v. INS, 856 F.2d 89, 91 (9th Cir. 1988).

In 1988, Rodriguez-Guillen, while represented by counsel, pled guilty to trafficking in heroin and was sentenced to three years in jail. Rodriguez-Guillen has submitted no evidence that he ever sought to appeal this conviction. At the deportation hearing, Rodriguez-Guillen, through counsel, requested a continuance in order to file a motion in California state court to set aside the conviction. Rodriguez-Guillen argued that he was innocent and that the drug trafficking conviction was not a final judgment. It is well established, however, that a criminal conviction is final for purposes of deportation when direct appellate review is exhausted or is waived. See Morales-Alvarado v. INS, 655 F.2d 172, 174-75 (9th Cir. 1981); Hernandez-Almanza v. INS, 547 F.2d 100, 102-03 (9th Cir. 1976). Because it appears Rodriguez-Guillen did not directly appeal his drug trafficking conviction, his conviction is final for purposes of deportation. See Morales-Alvarado, 655 F.2d at 175. This circumstance, the IJ did not abuse his discretion in finding that Rodriguez-Guillen's professed desire to move to set aside his conviction did not establish "good cause" for a continuance.¹  See Morales-Alvarado, 655 F.2d at 175. Accordingly, the BIA did not err in upholding the IJ's denial of a continuance. See Baires, 856 F.2d at 91. Furthermore, to the extent Rodriguez-Guillen seeks, in his brief to this court, to allege other grounds for his appeal to the BIA, his "arguments come too late.... [O]ur review is confined to the BIA's decision and the bases upon which the BIA relied." Martinez-Zelaya, 841 F.2d at 296.

PETITION FOR REVIEW DENIED.