NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE ARIEL LOPEZ-LOPEZ, AKA Jose 

Ariel Lopez, AKA Jose Ariel Lopez Lopez, 

Petitioner, 

 v. 

WILLIAM P. BARR, Attorney General, 

Respondent.

No. 18-71180 

Agency No. A092-856-198 

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted April 17, 2019

**

Before: McKEOWN, BYBEE, and OWENS, Circuit Judges. 

Jose Ariel Lopez-Lopez, a native and citizen of Mexico, petitions for review 

of the Board of Immigration Appeals’ order dismissing his appeal from an 

immigration judge’s (“IJ”) decision denying his application for a waiver of 

inadmissibility under former 8 U.S.C. § 1182(c). Our jurisdiction is governed by 8 

 

* 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).

FILED

APR 22 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 18-71180 

U.S.C. § 1252. We review de novo questions of law and constitutional claims. 

Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010). We deny the petition for 

review.

The agency did not err or violate due process by admitting into evidence 

Sergeant Mark O’Dell’s testimony and an investigative report, where such 

evidence was probative, its admission was fundamentally fair, and Lopez-Lopez

did not show that it was inaccurate or unreliable. See Paredes-Urrestarazu v. INS, 

36 F.3d 801, 810 (9th Cir. 1994) (“[A]s long as the Board does not consider 

inappropriate or irrelevant factors, we think that the breadth of the section 212(c) 

inquiry permits the Board to consider evidence of conduct that does not result in a 

conviction.” (internal citations omitted)); Sanchez v. Holder, 704 F.3d 1107, 1109 

(9th Cir. 2012) (rejecting petitioner’s claim that evidence constituted inadmissible 

hearsay, where the sole test for admission of evidence in immigration proceedings 

is whether the evidence is probative and its admission is fundamentally fair);

Espinoza v. INS, 45 F.3d 308, 310 (9th Cir. 1995) (burden of establishing a basis 

for exclusion of evidence from a government record falls on the opponent of the 

evidence, who must come forward with enough negative factors to persuade the 

court not to admit it); Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring 

error and substantial prejudice to prevail on a due process claim).

Because Lopez-Lopez’s contentions regarding the agency’s adverse 
3 18-71180 

credibility determination assume that the agency erred in admitting Sergeant 

O’Dell’s testimony and the investigative report into evidence, it follows that 

Lopez-Lopez did not establish error in the agency’s credibility determination. See 

Lata, 204 F.3d at 1246.

To the extent the agency’s discretionary denial of relief was based on an 

adverse inference from Lopez-Lopez’s invocation of his Fifth Amendment right 

against self-incrimination, Lopez-Lopez has not established that the agency erred, 

and he cites no authority to support his contention that the agency was not 

permitted to draw an adverse inference under the particular circumstances of his 

case. See Gutierrez v. Holder, 662 F.3d 1083, 1091 (9th Cir. 2011) (“In a 

deportation hearing there is no prohibition against drawing an adverse inference 

when a petitioner invokes his Fifth Amendment right against self-incrimination.”).

We reject Lopez-Lopez’s claim that the IJ deprived him of a full and fair 

hearing on account of bias, hostility, improperly questioning or limiting the 

testimony of witnesses, or standing in moral judgment. See Colmenar v. INS, 210 

F.3d 967, 971 (9th Cir. 2000) (due process claims require showing that 

proceedings were “so fundamentally unfair that the alien was prevented from 

reasonably presenting his case”) (internal quotation marks and citation omitted)); 

Almaghzar v. Gonzales, 457 F.3d 915, 922 (9th Cir. 2006) (petitioner “had ample 

opportunity to present his case, and the record as a whole does not suggest that the 
4 18-71180 

IJ did not conduct the hearing with an open mind”).

The agency did not err or violate due process in denying Lopez-Lopez’s 

request for a continuance to await the conclusion of an open criminal investigation 

or allow him to retain different counsel, where he did not demonstrate good cause, 

and where he was represented by his attorney of choice up to his final hearing; at 

the time of his request, no new attorney had filed a notice of appearance on his 

behalf; and his current counsel had competently represented him over a period of 

years. See Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009) (listing factors to 

consider); Singh v. Holder, 638 F.3d 1264, 1274 (9th Cir. 2011) (“[T]he IJ [is] not 

required to grant a continuance based on . . . speculations.”); Lata, 204 F.3d at 

1246; cf. Ram v. Mukasey, 529 F.3d 1238, 1242 (9th Cir. 2008) (an IJ may 

“determine, in the absence of a showing of good cause for an additional 

continuance, that the right to counsel has been forfeited”).

PETITION FOR REVIEW DENIED.