Pleitez-Lopez v. Barr

          Argued and Submitted August 12, 2019 Pasadena, California

          On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A205-319-371

          Shawn J. Beam (argued), Los Angeles, California, for Petitioner.

          Jane T. Schaffner (argued), Trial Attorney; Douglas E. Ginsburg, Assistant Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

          Before: Mary M. Schroeder and Susan P. Graber, Circuit Judges, and Michael H. Watson, ^[*] District Judge.

         SUMMARY^[**]

         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, 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.

          OPINION

          GRABER, Circuit Judge.

         Petitioner Luis Pleitez-Lopez seeks review of the Board of Immigration Appeals' decision affirming the immigration judge's ("IJ") denial of a continuance for Petitioner to update his fingerprints with the Department of Homeland Security ("DHS"). Petitioner did not update his fingerprints because his lawyer advised him, incorrectly, that he was not required to do so. He contends that his reliance on his lawyer's advice was reasonable and constituted "good cause" to grant a continuance under 8 C.F.R. § 1003.29. We agree and grant the petition.

         FACTUAL AND PROCEDURAL BACKGROUND

         Petitioner, a native and citizen of Guatemala, entered the United States in 2002 without being admitted or paroled. In August 2012, the government placed Petitioner in removal proceedings. ...