Francisco Javier Varela Silva v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANCISCO JAVIER VARELA SILVA,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 21-70575
Agency No. A215-649-011
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 14, 2022**
Phoenix, Arizona
Before: BYBEE and OWENS, Circuit Judges, and RAKOFF,*** District Judge.
FILED
NOV 18 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.

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Francisco Javier Varela Silva appeals the decision of the Board of
Immigration Appeals (“BIA”) which upheld the denial of a continuance by the
Immigration Judge (“IJ”). We have jurisdiction pursuant to 8 U.S.C. § 1252, and
we grant the petition and remand for further proceedings.
The parties are familiar with the facts in this case, and we repeat them only
as necessary to our analysis. Varela Silva is a citizen of Mexico who is married to
a U.S. citizen. He came to the United States on a B-2 Visa and then remained in
the country. Varela Silva has been arrested once for solicitation of prostitution and
at least once for driving under the influence (“DUI”), including for extreme DUI.
Varela Silva challenges the IJ and BIA’s denial of his motion to continue and the
due process of his hearing before the IJ.
We review the BIA’s decision regarding the continuance for abuse of
discretion. Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009) (describing the
standard of review on continuance decisions). Under 8 C.F.R. § 1003.29, a motion
for continuance requires the petitioner to show “good cause.” The “decision to
grant or deny the continuance is within the sound discretion of the judge.” Singh v.
Holder, 638 F.3d 1264, 1274 (9th Cir. 2011) (internal citations and quotations
omitted). When determining whether a continuance is warranted, the IJ should
focus the inquiry on “the apparent ultimate likelihood of success on the adjustment
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application.” In re Hashmi, 24 I. & N. Dec. 785, 790 (BIA 2009). And, in this
case, adjustment of status is left to the discretion of the IJ. 8 U.S.C. § 1255(a).
Varela Silva’s claims stem from confusion about his criminal history. The
BIA concluded that Varela Silva “would be denied adjustment of status as a matter
of discretion based on his extensive criminal history, including convictions for
solicitation of prostitution and driving under the influence (DUI), and his recent
arrest for extreme DUI.” The IJ also noted that Varela Silva was “arrested and
convicted” of solicitation of prostitution and DUI, and that “the Court would deny
adjustment of status in the exercise of discretion” based on his criminal history.
Convictions are relevant to an adjustment of status because “any decision to
grant or deny adjustment of status . . . should include a careful analysis of whether
an applicant with multiple DUI convictions merits such relief as a matter of
discretion.” In re Castillo-Perez, 27 I. & N. Dec. 664, 673 n.3 (A.G. 2019)
(emphasis in original). If Varela Silva has indeed been convicted of driving under
the influence, then the IJ and BIA reasonably found that he would not merit a
discretionary grant of adjustment of status. Id.
However, the administrative record does not show any documented
convictions. At the IJ hearing, Varela Silva denied that he had ever been convicted
of solicitation of prostitution, and his counsel said that the 2018 DUI arrest
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“resulted . . . in a simple DUI.” Taken together, these documents and Varela
Silva’s oral testimony do not conclusively show prior convictions. Because the IJ
and the BIA relied on prior criminal convictions, the lack of documentation in the
record undermines their conclusion that Varela Silva would ultimately be
unsuccessful in his application to adjust his status, and therefore did not deserve a
continuance. And without evidence of a conviction, it is unclear if the remaining
adverse factors are sufficient to uphold the BIA and IJ’s decision.
Accordingly, we GRANT the petition and REMAND to the BIA with
instructions to remand to the IJ for further proceedings consistent with this
opinion. The IJ should determine whether Varela Silva has any prior convictions
and then weigh the factors enumerated in In re Hashmi, 24 I. & N. Dec. 785
(2009).
The petition is GRANTED and REMANDED.
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