Pleitez-Lopez v. Barr, No. 16-73656 (9th Cir. 2019)
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The Ninth Circuit granted a petition for review of the BIA's decision affirming an IJ's denial of continuance for petitioner to update his fingerprints with DHS. In this case, petitioner did not update his fingerprints because his lawyer advised him, incorrectly, that he was not required to do so.
The panel held that petitioner's reliance on his lawyer's advice was reasonable and constituted "good cause" to grant the continuance under 8 C.F.R. 1003.29. The panel held that the BIA abused its discretion by failing to analyze all the factors in Cui v. Mukasey, 538 F.3d 1289 (9th Cir. 2008). Furthermore, the BIA abused its discretion by analyzing the unreasonableness of petitioner's conduct in an arbitrary and irrational manner.
Court Description: Immigration. Granting Luis Pleitez-Lopez’s petition for review of a decision of the Board of Immigration Appeals affirming an immigration judge’s denial of a continuance for Petitioner to update his fingerprints with the Department of Homeland Security (DHS), the panel held that Petitioner’s reliance on his lawyer’s erroneous advice that he was not required to update his fingerprints was reasonable and constituted “good cause” to grant a continuance, and remanded. Petitioner provided fingerprints to DHS before his first merits hearing, but was granted a continuance to file for relief. At a later hearing, the IJ reset Petitioner’s case for a later date and instructed Petitioner that he must have his fingerprints retaken 60 days before that hearing or the IJ would find that he had abandoned his applications for relief. However, when his hearing date arrived, Petitioner had not provided the required fingerprints to DHS because his attorney’s office had erroneously advised him that he was not required to do so. The IJ denied the continuance, and the BIA affirmed, concluding that Petitioner lacked good cause for failing to update his fingerprints because the IJ properly advised him of his obligation to update his fingerprints and the consequence for failing to do so. The panel held that the BIA’s decision to deny a continuance was an abuse of discretion in two ways. First, PLEITEZ-LOPEZ V. BARR 3 the BIA failed to analyze all the factors set out by Cui v. Mukasey, 538 F.3d 1289 (9th Cir. 2008), which instructs the court to consider: (1) the importance of the evidence, (2) the unreasonableness of the immigrant’s conduct, (3) the inconvenience to the court, and (4) the number of continuances previously granted. Second, the panel held that the BIA analyzed the unreasonableness of Petitioner’s conduct in an arbitrary and irrational manner. Contrary to the BIA, the panel concluded that Petitioner acted reasonably in relying on his lawyer’s advice, explaining that Petitioner’s reliance was especially reasonable because the lawyer’s bad advice post-dated the IJ’s instructions.
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