F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

H U I R A N M U , P etitioner
,

v

.

W I L L I A M P. B A R

R , Attorney General, Respondent. Nos. 16-71292 16-73561

Ag ency No. A056-496-104

OPI NI ON

O n Petition for Review of an Order of the B oard of I

mmig ration Appeals

Arg ued and Submitted May 14, 2019 Portland, Oreg on

F iled September 4, 2019

B efore: N. Randy

Smith, Paul J . W atford, and Ry an D. Nelson, Circuit J udg es.

Opinion by

J udg e N.R. SmithM U V

. B A R R 2

SUMMARY *

Im m igration

Granting in part a

nd deny ing in p ar t H u i Ran Mu’s petitions f

or review of decisions of the B oard of I mmig r ation Appeals, the panel held t h a t derivative beneficiaries of an

a lien entrepreneur in the immig rant investor prog ram (EB- 5
prog r am), w ho receive conditional leg al permanent residence status, have the rig ht to seek review of the denial of the I -829 petition to remove the conditions o n their pe r m a n ent residence status and, theref ore, the ag ency erred in not reviewing the denial of Mu’s father’s petition.

W h en Mu’s father was g ranted condit i onal lawful permanent r esidence as a

n E B -5 investor, Mu and her mother (who is not a party to this case) were g ranted c o n d i tional lawful permanent residence as derivative beneficiaries. Mu’s father submitted a

n I -829 petition to remove the conditions on their permanent residence, but the United States Citiz e nship and I mmig ration Service denied the petition a n d terminated the family ’s conditional status.

The family was then placed in removal proceeding s, a nd Mu’s father w as la ter removed in absentia. After the i m m i g ration judg e ordered Mu removed to China, Mu appealed to the B I A, a

rg u ing that the I J erred in f ailing to review the denial of the I -829 petit i on. However, the B I A concluded that only the principal p e titioner (Mu’s father)

* T h is su m m ary co n stitu

tes n o p art o f th e o pin io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.M U V

. B A R R 3

could seek review of the d enial of the I -829 petition before the I J

.

The panel he l d t h at the plain lang uag e of 8 U .S.C. § 1 1 8 6 b(c)(3)(D)—which provides that “any alien” whose conditional p ermanent res i d ent status has been terminated after the d enial of a n I -829 petition may request review o f such d e t e r m i n a t i o n i n a r emoval proceeding —unambig uously establishes that Cong ress did not intend to limit such r eview
to the alien entrepreneur. Thus, the panel concluded that the
ag ency e rred in not r e v iewing the denial of her father’s petition.

The panel a lso concluded that the ag ency d id not abuse its discretion in deny i n g Mu’s request for a continuance,

ex p laining that, althoug h the B I A did not ex pressly address the factors set forth in A h med v. Holder , 569 F .3d 1 009 (9th Cir. 2009), the I J sufficiently outlined why g ood cause did not

ex ist, and the B I A relied on the I J ’s reas o n s i n concluding that the denial was not clearly erroneous.

F inally

, the panel concluded that the B I A d id not abuse its discretion in deny

ing Mu’s motion to reconsider. The panel rejected Mu’s assertion that the B I A should h ave considered

new evidence she submitted o n appeal, ex plai ning that the B I A is not r equired to consider n e w evidence on appeal a nd that a motion for r e consideration d oes not permit r eview o f new evidence.M U V

. B A R R 4

COUNSEL

Christopher W

. H e l t ( a

r g ued), The Helt L aw Group L L C, Chicag o, I llinois, for Petitioner.

Carmel A. Morg an (arg

ued), Trial Attorney ; Shelley R. Goad, Assistant Director; O f

fice of I mmig r ation L itig ation, Civil Division, United States D epartment of J ustice, W as h i ng ton, D.C.; for Respondent.

OP INION

N.R. SMI TH, Circuit J udg e :

Derivative beneficiaries of an alien entrepreneur in the immig rant investor p rog ram ( EB -5 prog ram), who receive conditional leg al permanent resident (“L PR” ) s tatus, a re entitled to the same review rig hts in removal proceeding s a s the alien entrepreneur. 8 C.F .R. § 216.6(d)( 2 )

. T hus, in removal p r oceeding s, an immig ration judg e’s (“I J ”) failure to review the denial of an I -829 petition (even thoug h the alien is a beneficiary

of the petition) is error.

I. Adm inistrative F ram ew ork

“ T he immig rant investor prog ram, or EB -5 prog ram, established by

the I mmig ration and Nationality Act (‘I NA’), allows a liens to re c e i v e permanent resident status upon the i n v estment of a specified amount of capital and the c reatio n of at least ten full-tim e jobs in the United States.” Spencer Enters., I n c

. v. United States
, 345 F .3d 683, 686 (9th Cir. 2003) (citing 8 U.S.C. § 1153(b) ( 5 ) )

. “The purpose o f the EB -5 Prog ram is to promote the immig ration of people w hoM U V

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can help c reate jobs for U.S. w orkers through their invest m ent of c apital into the U.S. economy

. ” EB

- 5 Adjudications Policy ( PM-602-0083), 2013 W L 2387747,
at *1 (Dep’t of Homeland Security May 30, 2013). “I n apply ing f or an EB -5 visa, an alien entrepreneur must submit

an I -526 petition” establishing that he or she has met the required c riteria. Spencer Enters.
, 345 F .3d a t 686. After approval o f the I -526, the alien entrepreneur, the a lien spouse, and the alien c hild may enter the United States as conditional L PRs. Chang v. United States
, 327 F .3d 911, 916 (9 t h Cir. 2003); see also 8 U.S.C. § 1 186b(a), (f). Thereafter, the “EB

5 requires the [ alien entrepreneur] to file a second p etition, an ‘I -829,’ between 2 1 a nd 24 months after the first petition.” Chang

, 327 F .3d at 916; s e e also 8 C.F .R. § 216.6(a)(1). Normally

, the alien entrepreneur includes h is alien spouse and alien child in the I -829 petition. See 8 C.F

. R. § 216.6(a). However, in some circumstances, the spouse or child may file his or her own I -829 petition. S ee id. Thereafter, the United States Citiz enship & I mmig ration Service (“USCI S”) “approve[ s] the I

- 829 petition, and g r an t [ s] unconditional L PR status, if it finds that the [ alien e n t r epreneur] made no material misrepresentations i n the I -526 petition a nd complied with the EB

- 5 requirements.” Chang

, 327 F .3d at 916 (citing 8 C.F .R. §§ 204.6, 216.6).

On the other hand, if the USCI S denies the I -829 petition, the director “shall provide w ritten notice to the ali e n of the decision and the reason(s) therefor, and shall issue a n o r der
to show cause why the alien should n ot be deported from the United St a t es.” 8 C.F .R. § 216.6(d)(2). At that time, the condit ional L PR status of the alien e ntrepreneur, the alien
spouse, and the a lien c h i l d is terminated. See id. ; 8 U .S.C. § 1186b(c)(3)(C). No appeal is avail ab l e from the denial o f the I -829; h ow e v er, the alien (whose L PR status wasM U V

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t e r m i n a ted) may request review of the denial in his or he r removal proc e e d i n gs

. 8 C.F .R. § 216.6(d)(2). At that time, the ag ency has the burden “ to establish by a preponderance o f the evidence that the facts and information in the a li e n ’s petition f o r r emoval of c onditions a re not true and that the petition was properly

denied.” Id.

II. P rocedural History & F acts

I n 2 002, Yankui M u ( Mu’s father) applied for and was g ranted c onditi onal L PR status as an EB -5 investor. See 8 U.S.C. § 1153(b)(5). I n 2004, Yankui, L ing Z hi (Mu’s mother), and Mu conditionally e ntered the Uni t ed States a s L PRs under the EB -5 prog ram. A ll three were considered conditional L PRs, thoug h Mu and her mother (who is not a party to this petition) were derivative beneficiaries o f Y ankui Mu. Two y ears later (as required by stat u te), Mu’s father filed an I -829 petition 1 on his behalf a nd that of his family

. The U SCI S denied the petition, b ecause Mu’s father failed to demonstrate the job creation r equirements for the EB -5
prog r am were met or would b e met in a reasonable amount o f time. See 8 U.S.C. § 1186b(b). As a res u l t o f the I -829 denial, the USCI S terminated the conditional status of Y ankui Mu, L ing Z hi, and Mu on May 2 1
, 2 007. Thereafter, the Department of Hom el a nd Security (“DHS”) issued a Notice
to A ppear, c harg ing Mu (and her parents) with removability

, based on the termination of their conditional status.

I n J anuary 2008, Mu appeared with her parents b efore an I J

. They admitted the factual alleg a tions in the Notice to

1 A n I- 82 9 Fo rm is f

iled to rem o v e co n d itio n s o n p erm an en t resid en t statu s. If th e I- 8 2 9 is d en ied

, th e co n d itio n al L P R statu s is term in ated an d

rem o v al p ro ceed i n g s are in itiated

. S ee 8 U.S.C. § 1 1 8 6 b

.M U V

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Appear and conceded r emovabil i t y

. I n March 2009, Mu’s father failed to appear at the scheduled hea r i ng and was removed in absentia. 2

B e cause Mu’s father w as removed in absentia, t h e I J asked Mu and her mother to brief the issue of whether they had standing to cha l l e n g e the I -829 denial. 3 However, in J anuary 2014 (during the scheduled merits hearing ), the I J did
not a ddress whether Mu had standing to challeng e t he I -829 denial or whether the I -829 p e tition was properly denied. I nstead

, t h e I J addressed only Mu’s request for a motion to continue. T he I J denied Mu’s request for a continuance (1) to f i l e a nother F o rm I -526 (a previous application having been denied) and (2) to obtain her passport to show her departure dates from the United States. T he I J then issued its decision, deny ing Mu’s request for voluntary d e p a r ture and ordering her removed to China.

Mu a ppealed t o the B I A, a

rg uing that the I J erred in failing to review the denial of the I

- 8 2 9 p e t i tion and in deny ing her voluntary d eparture. Mu submitted h er passport with her appeal to establish her e li g i b i l ity for voluntary departure. The B I A d ismissed Mu’s appeal, concluding that, under 8 C.F .R. § 216.6(d)(2 )

, o nly the principal p etitioner ( M u ’ s father) may seek review o f the denial of the I -829 petition b efore an I J

. The B I A also concluded that the entry of the final order of removal ag ainst Mu’s father constituted

an abandonment of his claims; thus the I -829 p etition was

2 A t th at tim e, n eith er Mu n o r h er m oth er seem ed to k n o w th e lo catio n

o f Mu ’ s f ath er.

3 T h e IJ s ub s e q u e n tly sev ered Mu ’ s case f ro m h er m o th er’ s case, b ecau se Mu ’ s m o th er h ad rem arried an d h ad a p en d in g I- 1 3 0 p etitio n

.M U V

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unreviewable. The B I A lastly conclud ed that the I J did not

err in deny i n g M u a continuance o r in finding her inelig ible for voluntary

departure.

Mu timely p etitioned this c o urt to review the BI A ’s decision and filed a motion to r econsider with the B I A. I n the motion for reconsideration

, Mu arg u ed that the B I A should have accepted her passport as evidence that she was elig ible for voluntary d eparture. She also again asserted that an I J should have reviewed the USCI S’s I -829 decision.

The B I A denied the motion for reconsideration. The B I A concl u d e d that Mu’s a

rg uments were previously made a nd rejected, or that they were raised for the first time on appeal. M u timely p etitioned this court to r eview the B I A ’s de n i a l

. The two petitions are now consolidated for this appeal.

III. Discussion

A. The BIA erred in finding that Mu lacked st a n ding ( a s a derivative beneficiary) to challenge he r father’s I-829 denial.

“W e review B I A determinations of purely leg al issues
reg arding the I

NA de novo.” Federiso v. Hol de r , 6 0 5 F .3d 695, 697 ( 9th Cir. 2010). I n interpreting statutes, we defer to t h e a gency only if the statute is ambig uous. Thus, “we fir s t determine i f there is any a mbig uity in the statute using traditional tools of statutory interpretation.” Id. “W e may not a ccept an interpretation cl e a rly contrary to the plain meaning of a statute’s tex t.” Id.

“[ O] ur job is to interpre t the words consistent with their ‘ordinary meaning a t the time Cong ress e nacted the statute.’”M U V

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W isconsin Cent. Ltd. v. United States
, 138 S. Ct. 2067, 2070 (2018) (alteration o mitted) (quoting Perrin v. United States
, 444 U.S. 37, 42 (1979)). To determine whether we s h o u l d defer to an ag ency ’s construction of a statute, we apply the procedure o utlined by Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.
, 467 U.S. 8 3 7
, 842–43 (1984). F irst, we d e t e r m ine “whether Cong ress has directly spoken to the precise question at issue. I f the i n t e n t o f Cong r ess is clear, that is the end of the matter; for the court,

as well as the ag e ncy , must g ive effect to the unambig uously

ex p ressed intent of Cong ress.” Id. Second, if “Cong ress has
not directly a ddressed the precise question at issue,” then we must d etermine “whether the a g en c y ’ s answer is based on a permissible construction of the statute.” Id. at 843.

F o l l o w ing this precedent, we beg in with the plain lang uag e o f the applicable statute, 8 U.S.C. § 1186b(c)(3), to determine whether a derivative beneficia r y h as standing to challeng e the denial o f an I

- 829 petiti o n

. See Eleri v

. Sessions
, 852 F .3d 879, 882 (9th Cir. 2 0 1 7). The statute provides in relevant part:

(C) Term ination if

adverse determ ination

I f the Attorney G e neral d etermines that such facts a nd information [ in t h e I -829 petition]

are not true, the Attorney General s h a ll so notify the alien involved and, subject to

s ubparag raph (D), shall terminate the
perma n e n t resident status of an alien entrepreneur, ali en s

pouse, or a lien child a s of the date of the determination.M U V

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(D) Hearing in rem oval proceeding

Any alien whose permanent resident status is terminated u n d

e r subparagraph (

C) may

r equest a review of such determination in a proceeding t o r e move the alien. I n such proceeding

, the burden of proof shall be on the Attorney General t o establish, by a prepond e rance of the e vidence, that the facts and information descri b e d i n subsection ( d)(1) and alleg ed in the petition are n ot true with

r e s p ec t t o t h e q u a l i f y i n g c o m m e r c i al enterprise.

8 U.S.C. § 1186b(c)(3) (emphases added).

There is no ambig uity in the p lain lang uag e of this statute; Cong r ess has directly spoken to the issue. Cong ress’s use o f the phrase “[ a] ny alien w hose p ermanent r e sident status is terminated” was not intended to limit review to the alien entrepreneur. Even thoug h (1) an al i e n e ntrepreneur is the driving force in b ring ing over his or her a lien spouse and any alien children and (2) the removal of the conditional basis is
g enerally tied to t h e alien entrepreneur, the statute’s plain lang uag e doe s not bind the alien spouse or alien child to the alien entrepreneur for re v i e w purposes in removal proceeding s. 4 Nor does the statutory scheme as a whole seem

4 T h e statu t e do es n o t req u ire th at th e alien en trep ren eu r an d h is o r h er f am ily b e p l aced i n t

h e sam e rem o v al p ro ceed in g s

. S ee 8 U.S.C. § 1 1 8 6 b (c)(3 )(D) (“ A n y alien w h o s e p erm a n en t resid en t s tatu s is
term in ated u n d er su

b p a r a gr ap h (C) m ay req u est a rev i ew o f su ch d eterm in atio n i n a p ro ceed in g to remo ve th e a lien .” (em p h asis a d d e d ) ) ; see id . § 1 18 6 b (c)(2 )(B ) (“ In a n y remo va l p ro ceed in g w ith resp ect to an alien w h o se p erm an en t resid en t statu s is t e r m i n a t ed u n d er s u b p arag rap hM U V

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to indicate that Cong ress intended to limit who c ould request review.

The term “any ” is defined as “concerning a being o r thing of the sort n amed, withou t l i mitation as to which.” Ox ford Eng lish Dictionary (2d 1 989); see also Any
, MerriamW e b ster, h ttp://www.merriam-webster.com/dictionary /any (last visited Aug ust 13, 2019) (defining any as “one, some, o r all indiscriminately of whatever quantity ”). B y its own terms, “any ” is n o t limited to one being or thing (i.e., the alien entrepreneur). T he surroundin g p r ovisions reinforce this interpretation, as it limits “ any alien” to those who have had h i s o r h er “permanent resident status terminated.” B ecause the termination of the permanent resident status is not limited
to the a lien entrepreneur, an interpretation that “any alien” is limited to “alien entrepreneur” would r e nder the ad d i tional qualifier superfluous. See United S tates v. Nea l

, 776 F .3d 645, 652 (9th Cir. 2015) (W e “interpret the statute as a whole,
g iving effect to each w ord and making e v e r y effort not to interpret a provision in a manner that renders other provisions of the same statute inconsistent, meaning less or superfluous.” (alterations omitted)).

Throug hout the statute, Cong ress used t h e term “any al i e n ” in the contex t of termination and removal. I n § 1186b(b)(2) and § 1186b(c)(3)(D), the statute allows “[ a ] ny alien w h o se permanent resident status is terminated,” to request a review of the termin a t i o n

. The statute does not define “any alien.” See § 1186b. However, it does limit “any alien” to the alien entrepreneur, the alien spouse, a nd the alien

(A ), th e b u rd en o f p ro o f sh all be o n th e alien to estab lish co m p lian ce w i th th e co n d itio n s o f

p arag rap h s (1 )(A ) an d (1 )(B ).” (em p h asis ad ded )).M U V

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child, “whose permanent residence status is terminated.” See § 1186b(b)(1)(C), (c)(3)(C).

Cong r ess specifically used “any alien” when d iscus s i n g removal proceeding s; whe r ea s it used “alien entrepreneur” when it defined the a lien entrepreneur’s oblig ations under the
statute. 5 Compare 8 U.S

. C

. § 1186b(c)(1) with 8 U .S.C. § 1186b(c)(2)(B ). Cong ress unambig uously meant that the different classes of aliens have different rig hts a nd responsibilities under these p rovisions. This reading is clear from the tex t and contex t of the statute.

This broader interpretation is also supported by 8 U .S.C. §§ 1186a and 1227(a)(1)(D). F irs t , u nder § 1186a, 6 the
statute similarly p rovides that “ any alien” spouse or child has standing to challeng e the termination of h is or her conditional permanent resident status. See §§ 1186a( b )(2), (c)(3)(D). Second, § 1227(a)(1)(D) 7 provides that “[ a ] ny alie n ” wh ose conditional “permanent resident status” has been terminated (under either §§ 1186a or 1186b) is deportable. A g ain, it is

5 C o n g ress s im i larly ex ten d ed rev iew to th e alien en trep ren eu r, alien
sp o u se, an d alien ch ild in § 1 18 6 b (c)(2 )(B ) (ev en th o u g h it u ses th e term

“ an alien ” an d “ th e alie n ” r a t h er th an “ an y alien ”). Sectio n 1 1 8 6 b (c)(2 )(B ) p ro v id es th at an alien en t rep ren eu r, alien sp o u se, o r alien ch ild m ay estab lish th at t h e EB

- 5 req u i r e m e n ts w ere m et (ev en th o u g h th ey w ere req u irem en ts o n ly

o f th e alien en trep ren eu r).

6 Sectio n 1 1 8 6 a is ap p licab le t o alien s p o u ses w h o en tered th e Un ited States th ro u g h a q u alif

y in g m arriag e, su ch as a s p o u se o f a U n ited States citizen

, as a f

ian cée o r f

ian cé o f a Un ited States citizen

, o r as a sp o u s e of

an L P R. 8 U .S.C. § 1 1 86 a(h )(1 ). A n alien ch ild en ters in to th e Un ited States b ased u

p o n th e f o reg o in g “ q u alif

y in g m arriag e.” Id

. § 11 8 6a(h )(2 ), (3 ).

7 Sectio n

1 2 2 7 o u tlin es th e list o f

d ep o rtab le alien s.M U V

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clear t h at Cong ress’s unambig uous intent was that these provisions apply to “ a n

y alien ” r eg a

rdless of whether the alien is the p rincipal alien o r the benefici a r y

. I f Cong ress wanted to limit review to just an “alien entrepreneur,” it could have done so. The phase “any alien” should not have several different meaning s. B ecause Cong ress’s intent was clear, we need not reach the second step of Chevron

. 8

Even i f w e were to g ive deference to the g overnment, 8 C.F

. R. § 2 1 6.6(d)(2) does not actually make these
sug g ested limitations. 9 I nstead, § 216.6(d)(2) ex plains that

, after denial, “[ t] he alien’s lawful perman e n t resident status and that of h is or her spouse and any children shall be terminated a s o f the date of the director’s wr i t t en decision.” F urther, “ the alien m ay seek review of the decision in deportation proceeding s.” Id. At first blush, “the alien” may apply only to the alien entrepren eur. However, althoug h § 216.6(a)(1) allows for the “entrepr eneur’s spouse a nd children” to be included in the alien e ntrepren e u r’s F orm I

829, “[ c] hildren who have reached the a ge of twenty -one o r

8 T h e g o v ern m en t asserts th at th e term “ an y alien ” is am b i g u o us , in
p ar t , b e c a u se t

h e “ statu to ry sch em e req u ires th e alien en t rep ren eu r, in

m o s t circu m stan ces, to f ile t h e p etitio n to rem o v e co n d itio n s.” Ev e n th o u g h t h e g o v ern m en t’ s arg u m en t m ay be lo g ical an d h as so m e ap p eal,

am b i g u ity can n o t b e created w h ere n o n e ex ists in th e p lain lan g u ag e o f th e statu te. S ee G u id o v. Mo un t Lemmo n Fire Dist.
, 85 9 F.3 d 1 1 6 8
, 1 1 7 3 (9 th Cir. 2 0 17 ), cert. g ra n ted

, 1 3 8 S. Ct. 1 1 65 (2 0 18 ), an d a ff’d

, 1 3 9 S. Ct. 2 2 (2 0 1 8) (n o tin g th at “ d eclarin g th at m u ltip le reaso n ab le in terp retatio n s [o f
a statu te] ex i st d o es n ot m ak e it so ”).

9 T h e g o v ern m en t also cites to 8 C.F.R. § 1 03 .3 (a)(1 )(iii)(B ), w h ich
p ro v id es th at an “ af

f ected p arty ” ex clu d e s a “ b en ef iciary o f a v isa
p etitio n .” Ho w ev er, th at reg u latio n is n o t ap p licab le h ere, b ec a u s e i t ap p lies t o ap p eal s , see id

. , w h ich are ex clu d ed f

ro m I- 8 2 9 d en i als, see 8 C.F.R. § 2 1 6 .6 (d )(2 ).M U V

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who h ave married d

uring the period of conditional p ermanent residence and the former spouse of an entrepreneur, who was divorced from the entrepreneur during the p eriod o f conditional permanent residence, may be included in the alien
ent r epreneur’s petition or may f ile a separate petition.” Id. I n other words, under the plain lang uag e of the reg u lation, the twenty -one-y ear-old a lien c h ild who filed his or her own I

829 p etition would be “the alien” that could seek review. However, u nder the g overnment’s reading

, the same twenty

one-y ear-old alien child who was inclu d e d in the alien entrepreneur’s I -829 petition could not seek review, even thoug h the facts underly ing either I -829 petit i o n would be identical. Thus, even under the ag ency ’s own reg ulation, it

seems “the alien” cannot be so limited. I t is illog ical to sug g est that this twenty -one-y ear-old alien child should have different rig hts to seek review dep e n d i n g on whether that individual chose to file his or her own petition. 1 0

Nothing in § 1186b sug g ests that the phras e “any alien” is limited to the alien entrepreneur. T hus, Mu had the rig ht to seek review of the I -829 denial, and t he ag ency erred in not reviewing the denial of her father’s I -829 petition. 1 1

10 T h is p ro v i sio n m ak es ev en le s s s e n s e w h en ap p lied to a d iv orced alien sp o u se. T h e g o v ern m en t’ s read in g w o u ld g iv e m o re rig h ts t o a d iv o rced alien

sp o u s e th an

th ose o f an alien sp o u se.

11 T h e g o v ern m en t also arg u es th at Mu ’ s f ath e r ’s e f

f ectiv e ab an d o n m en t of h is rev iew o f th e I- 82 9 d en ial p relu d es h er f ro m ch allen g in g th e I- 8 2 9 den ial in t h e f irst in stan ce. A s discu ssed

, th e p lain lan g u ag e o f th e statu te d o es n o t req u ire th at a p etitio n f o r rev iew is lim ited
to an alien en trep ren eu r. T h u s, w e n eed n o t ad dress th is arg u m en t. No r d o w e n eed to ad d ress Mu ’ s p etitio n ap p ealin g th e d en ial o f h er m o tio n to

reco n sid er as to th is issu e.M U V

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B. The BIA did not

f ail to a pply the applicable standard of review to an IJ’s denial of a continuance.

B e fore the I J
, Mu requested volu ntary departure; to support her application for voluntary departure, she requested

a conti n u a n ce to allow her time to present evidence (specifically her passport). The I J denied the req u e s t t o continue, and the B I A affirmed. 1 2

To determine whether the BI A abused its discretion in deny ing a motion to c ontinue, we look to the factors set forth in Ahmed v. Holder

, 569 F .3d 1009, 1012 (9th Cir. 2009). The Ahmed factors “includ[ e] : (1) the nature o f the evidence

ex c luded as a result o f the denial of the cont i n u a nce, (2) the reasonableness of the immigr ant’s conduct, (3) the inconvenience to the court, and ( 4) the number o f continuances previously g ranted.” Id. “ [ T] he B I A abuses its d iscretion when it fails to state its reasons and show p roper consideration of all f

actors when weig hing equities a nd deny ing relief.” Id. at 1014 (citation omitted).

I n this case, t he I J noted that (1) Mu was informed on Fe b ruary 11, 2013, throug h c ounsel, “that her h eari n g o n J anuary 9
, 2014 would be on the status of the I -526, and if it

was denied [ Mu] was to be prepared to file and state a ny a nd all r elief before the Court”; (2) in J anuary 2014, Mu “stated

12 Mu d id n ot p etitio n f

o r th e rev i ew o f th e m erits o f th e IJ ’ s d en ial of
p o st- co n clu sio n v o lu n tary d ep artu re; in stead

, sh e o n ly arg u ed th at th e IJ ab u sed its d iscretio n in den y i n g th e m o t io n to co n tin u e to al l o w h er to estab lish elig i b i l i ty

. T h u s, s h e w aiv ed an y ch allen g e to th e m erits of

w h eth er sh e w as elig ib le f

o r v o lu n tary

d ep artu re. S

ee Ma rtin ez-S

erra n o

v

. INS
, 9 4 F.3 d 1 2 5 6, 1 2 5 9

– 6 0 (9 th Cir. 1 9 9 6 ). T h eref o re, b ec a u s e t h e d en ial o f th e m otio n to co n tin u e w as n o t an ab u se o f d iscretio n , Mu is n o t elig ib l e f or p o st- co n clu sio n

v o lu n tary

d ep artu re.M U V

. B A R R 16

t h a t s he would be seeking no o ther r elief other than post

conclu s i o n voluntary departure”; (3) Mu was allowed additio nal time during the hearing for her counsel to inform her of the requirements of voluntary d eparture; and ( 4) “[ i] t is [ Mu’s] burden to show th a t she is elig ible for postc onclusion voluntary d eparture, and by her own a dmission she left the United States in 2007 during the summer months and re t u r n e d to either China or Sing apore.” T h e I J then denied the motion, concluding that no g ood cause ex isted to continue the matter.

Althoug h the B I A did not ex pressly add r e s s the Ahmed factors, the I J s u f

f i c i ently outlined why g ood cause did not

ex ist. See Cui v. Mukasey

, 538 F .3d 1289, 1292 (9th Cir. 2008) (“The question whether denial of a co n t i n u a nce in an immig ration proceeding constitutes an abuse of discretion
cannot be decided throug h the a pplication of brig ht-line rules; it must be resolved on a case by case basis.” (citation omitted)). I n concluding that the I J ’s decision was not clearly
erroneous, the B I A relied upon the I J ’s statement of reasons. See Tekle v. Mukasey

, 533 F .3d 1044, 1051 (9th Cir. 2008). B ey ond the fact that this case had b een continued for over six
y ears, 1 3 the I J ’ s conclusion that Mu did not meet the r equired
one-y ear o f c o n t inual residence (based on Mu’s o wn admissions) is sufficient for the I J to have reasonably denied the c ontinuance. See 8 U.S.C. § 1229c(b)(1)(A). F urther, Mu did not c h al l eng e this conclusion in her opening b rief. See Martinez-Serrano
, 94 F .3d at 1259–60 (noting that issues not

13 Fro m th e tim e o f th e I- 8 2 9 d en ial u n t i l Mu ’ s m erits h earin g , Mu

an d h er m o t

h er w ere g ran ted sev eral co n tin u an ces.M U V

. B A R R 17

raised in the opening

brief are deemed waived). Thus, there was no abuse of discretion in this case. 1 4

P ETI T IONS F OR REVIEW G R ANTED, in part, DENIED, in part. T he parties shall bear their own costs on appeal.

14 T h e B IA did n o t ab u se its d i screti o n i n d en y in g Mu ’ s m o t io n to

reco n sid er. S

ee La ra -To rres v

. Ash cro ft

, 3 8 3 F.3 d 9 6 8
, 9 7 2 (9 th Cir. 2 0 0 4 ), a men ded s u b n o m. La r a -To rres v. Go n za les

, 4 0 4 F.3 d 1 1 0 5 (9 th Cir. 2 0 0 5 ) (st a n d a r d o f rev iew ). Mu asserts th at th e B IA sh ou ld h av e

co n sid ered h er p assp ort, w h ich sh e su

bm itted o n ap p eal to estab lish elig ib i lity f

o r p o st- co n clu sio n

v olu n tary d ep artu re. Ho w ev er, th e B IA is

n o t req u ired t o co n sid er n ew ev id en ce presen ted o n ap p eal. S ee 8 C .F.R. § 10 0 3 .1 (d )(3 )(iv ) (T h e B IA “ w ill n ot en g ag e in f actf in din g in t h e co u rse

o f d ecid in g ap p e a ls.”). Fu rth er, a m o t io n f

o r reco n sid eratio n d o es n o t p erm i t rev iew o f n ew ev id en ce, s u ch a s Mu ’ s p assp o rt, to estab lish a f actu al b asis f

or relief

. S ee S oco p -Go n za lez v. INS
, 2 72 F.3 d 1 1 7 6
, 1 1 8 0 & n .2 (9 th C ir. 2 0 01 ) (en b an c) (co n trastin g m o tio n s to reo p en w i th

m o tio n s f o r reco n sid eratio n ).