NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 20-3372

____________

NICOLAS MORALES,

 Petitioner

v.

ATTORNEY GENERAL OF THE

UNITED STATES OF AMERICA

____________

On Petition for Review from an

Order of the Board of Immigration Appeals

(Agency No. A215-665-203)

Immigration Judge: Pallavi S. Shirole

____________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

December 9, 2021

Before: SHWARTZ, PORTER and FISHER, Circuit Judges.

(Filed: February 8, 2022)

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OPINION*

____________

FISHER, Circuit Judge.

Petitioner Nicolas Morales, a native and citizen of Mexico who entered the 

United States in 1999 without official authorization, seeks review of the denial of his 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 

does not constitute binding precedent.
2

petition for cancellation of removal.1 He applied for cancellation on the basis that his 

wife and son, both of whom are U.S. citizens, will suffer “exceptional and extremely 

unusual hardship” if he is removed.2 On appeal, he argues the immigration judge 

abused her discretion by denying his request for a continuance of the removal 

proceedings. He also argues this denial deprived him of his due process rights to retain 

counsel of his choice and to present evidence. Perceiving neither an abuse of 

discretion by the IJ, nor a violation of Morales’s Fifth Amendment rights, we will 

deny the petition.

Morales first contends the IJ abused her discretion by denying his request for a 

continuance. Morales requested the continuance at the start of his merits hearing for 

the purpose of replacing his lawyer, in whom he states he lost confidence over the

failure to obtain probative evidence. Where, as here, the Board of Immigration 

Appeals affirms the IJ on a claim without discussion, we review the IJ’s decision.3 An 

IJ may “grant a motion for continuance for good cause shown.”4 We review the denial 

of a continuance for abuse of discretion, and we will reverse only if the denial “is 

arbitrary, irrational or contrary to law.”5

1 Our jurisdiction over the BIA’s final order arises under 8 U.S.C. § 1252(a).

The BIA had jurisdiction under 8 C.F.R. §§ 1003.1(b)(3), 1240.15, 1240.53. 

2 See 8 U.S.C. § 1229b(b)(1)(D).

3 See Mejia Romero v. Att’y Gen., 997 F.3d 145, 147–48 (3d Cir. 2021).

“‘Ordinarily, Courts of Appeals review decisions of the [BIA], and not those of an IJ.’

We review the IJ’s opinion only when ‘the BIA has substantially relied on that 

opinion.’” Id. (citation omitted) (quoting Camara v. Att’y Gen., 580 F.3d 196, 201 (3d 

Cir.), as amended (2009)).

4 8 C.F.R. § 1003.29. 5 Hashmi v. Att’y Gen., 531 F.3d 256, 259 (3d Cir. 2008).
3

Morales contends the denial was arbitrary because the IJ conducted only a 

cursory inquiry into his reasons for seeking a continuance. Despite Morales’s 

characterization to the contrary, the IJ did engage with Morales and his attorney about

why he was seeking to continue the proceedings, and she considered factors that might 

justify granting a continuance.

6 In her discussion with Morales, the IJ noted the case 

had been pending for roughly three months, Morales had not previously alerted the IJ 

to the need for a continuance, and he had only asked his lawyer to withdraw that very 

morning. Morales observes that this was the first continuance he requested in this 

case. This counts in his favor, yet it is not the only factor the IJ may consider.7 At a 

minimum, the decision to deny is sufficiently reasoned for us to conclude it was not 

arbitrary; therefore, it did not constitute an abuse of discretion.

Turning to Morales’s constitutional claims, he argues the refusal to postpone 

proceedings violated his due process rights in two respects: his right to counsel of his 

choice and his right to present supporting evidence. We review these claims de novo.8

Removal proceedings need only satisfy the requirements of “fundamental fairness.”9

6 See Matter of L-A-B-R-, 27 I. & N. Dec. 405, 415 (Att’y Gen. 2018) (“It may 

also be appropriate to consider the length of the continuance requested, the number of 

hearings held and continuances granted previously, and the timing of the continuance 

motion.”).

7 See id.

8 Fadiga v. Att’y Gen., 488 F.3d 142, 153 (3d Cir. 2007). 9 Muhanna v. Gonzales, 399 F.3d 582, 587 (3d Cir. 2005); see also CalderonRosas v. Att’y Gen., 957 F.3d 378, 384 (3d Cir. 2020) (detailing elements of a 

fundamentally fair hearing).
4

Procedural due process claims generally require a petitioner to show both a 

deprivation of process and resulting prejudice.10

On his first claim, Morales argues the IJ—by denying his requested 

continuance—forced him to proceed with a lawyer in whom he had lost confidence,

violating his right to counsel of his choice. Individuals in removal proceedings have a 

right to counsel that derives from the Fifth Amendment, not from the Sixth.11 This 

means an individual facing removal possesses the right “to counsel of his or her own 

choice at his or her own expense,” but not to “government-appointed counsel.”12

Within this claim, Morales also includes the contention that he received ineffective 

assistance of counsel. The “Due Process Clause guarantees aliens the right to effective 

assistance of counsel in removal proceedings,”13 and whether a petitioner was granted

the right to counsel of his choice is a separate and distinct question from whether a 

petitioner’s counsel was effective.

14 Morales’s brief is plausibly read as making both 

arguments, so we will address each in turn. 

Our precedent compels the conclusion that Morales’s right to counsel of his 

choice was satisfied. In Ponce-Leiva v. Ashcroft, the petitioner selected and retained a 

lawyer; however, that lawyer subsequently failed to appear at the petitioner’s merits

10 See B.C. v. Att’y Gen., 12 F.4th 306, 318 (3d Cir. 2021) (“In some cases, a 

due process issue may not warrant a remand to the agency where it is clear the 

noncitizen suffered no prejudice from the agency’s errors.”).

11 Ponce-Leiva v. Ashcroft, 331 F.3d 369, 374 (3d Cir. 2003). In addition, 

petitioners are also afforded a statutory entitlement to counsel. 8 U.S.C. §

1229a(b)(4)(A); see also 8 C.F.R. §§ 1003.16, 1240.3. We have treated these rights to 

counsel as satisfied in the same circumstances, see Ponce-Leiva, 331 F.3d at 374–77, 

as the parties do here.

12 Leslie v. Att’y Gen., 611 F.3d 171, 181 (3d Cir. 2010). 13 Calderon-Rosas, 957 F.3d at 385. 14 See Ponce-Leiva, 331 F.3d at 374, 377–78. 
5

hearing.15 As in this case, the petitioner argued the IJ’s refusal to grant a continuance 

deprived him of the right to counsel.

16 This Court held the petitioner’s right had been 

satisfied because the petitioner had received “ample time” since the initiation of 

proceedings to find a lawyer and had in fact done so.

17 We also drew attention to the

“facial lack of merit” in the petitioner’s claim.18

Ponce-Leiva forecloses Morales’s argument that his right to due process was

violated because he had to proceed with a lawyer in whom he had lost faith. Here, 

Morales was able to retain counsel in time for his initial hearing in December 2019.

He thus exercised his right to select and retain counsel. Furthermore, unlike the 

petitioner in Ponce-Leiva, Morales was actually represented by counsel at his merits 

hearing, so he was in a better position than a petitioner who we held suffered no due 

process violation. 

Attempting to avoid this precedent, Morales argues the IJ “bullied” him into 

proceeding with a lawyer in whom he had lost confidence.

19 But the hearing transcript 

does not reveal the sort of “browbeating” that we have held undermines the 

fundamental fairness of a proceeding.20 The IJ’s tone appears respectful throughout 

the proceedings, her occasional interjections were limited to asking clarifying 

15 331 F.3d at 371–72.

16 Id. at 371–73. 17 Id. at 374–76. In arriving at this rule, we assumed that for a petitioner’s right 

to counsel to be violated, the denial must result from an abuse of discretion by the IJ. 

See id. at 375. Under that rule, Morales’s claim fails because, as we indicate above, 

the IJ’s denial did not constitute an abuse of discretion.

18 Id. at 377. 

19 Pet. Br. at 21.

20 See Serrano-Alberto v. Att’y Gen., 859 F.3d 208, 216–19, 221–25 (3d Cir. 

2017) (collecting and discussing cases). 
6

questions, and her reminders to Morales to speak through the interpreter were limited 

to the start of proceedings and were consistent with preserving the clarity of the 

testimony.21 Morales also attempts to liken his case to Leslie v. Attorney General.

22

However, in Leslie, the IJ failed to notify the petitioner of the availability of free legal 

services in violation of applicable regulations.

23 In this case, Morales cannot show a 

comparable regulatory violation by the IJ, and he was able to obtain representation. In 

response to this basis for distinguishing Leslie, Morales pivots to an ineffective 

assistance argument,24 which we address now.

According to Morales, the IJ should have granted his requested continuance

because he indicated he was not represented by effective counsel.

25 To prevail on an 

ineffective assistance claim, a petitioner needs to show that competent counsel would 

21 See Cham v. Att’y Gen., 445 F.3d 683, 687–89, 691–92 (3d Cir. 2006) 

(finding that IJ “continually abused an increasingly distraught petitioner,” including 

by repeated commands to speak through the interpreter).

22 Morales also relies on Ignatov v. Ashcroft, 71 F. App’x 157 (3d Cir. 2003), 

an unpublished decision, which is of course non-precedential. See, e.g., Wallace v. 

Mahanoy, 2 F.4th 133, 144 n.16 (3d Cir. 2021). Even if Ignatov were designated as 

precedential, it would be unhelpful for Morales. Ignatov distinguished Ponce-Leiva on 

the basis that the petitioner had a facially valid reason to request asylum; therefore, the 

absence of a lawyer was prejudicial. See 71 F. App’x at 161–62. Here, as we will 

discuss, Morales cannot show prejudice.

23 611 F.3d at 173–75; see 8 CFR. § 1240.10(a)(1)–(2). 

24 Pet. Br. at 22 (“[W]hether Mr. Morales was aware of the existence of pro 

bono counsel bears no relationship to whether he felt adequately represented by his 

attorney.”). 25 The Government suggests that Morales may have forfeited his ineffective 

assistance argument by not squarely raising it on appeal. Indeed, claims raised only in 

passing are deemed forfeited. Fed. Trade Comm’n v. AbbVie Inc., 976 F.3d 327, 368

n.3 (3d Cir. 2020). But here, Morales filed a motion to remand for ineffective 

assistance of counsel before the BIA, and he alleges that his prior counsel was 

ineffective throughout his brief. Furthermore, the BIA found that Morales had 

complied with the factors from Matter of Lozada for the preservation of a claim of 

ineffective assistance of counsel on appeal. See 19 I. & N. Dec. 637, 638–39 (BIA 

1988). As a result, we consider the claim. 
7

have acted differently and that the petitioner suffered prejudice as a result of counsel’s 

performance.

26 Prejudice requires a showing of a reasonable probability of a different 

outcome before the IJ, absent counsel’s errors.

27 As an initial matter, we are not 

persuaded that Morales’s attorney was incompetent. Although Morales may have 

preferred different counsel, the record shows that Morales’s lawyer was prepared to 

represent him at the hearing and that she ably discharged her duty.28 Even if we did 

perceive incompetence, we remain unconvinced that Morales has shown prejudice.

Morales claims his prior attorney was incompetent specifically for failing to gather the 

evidence that he later presented to the BIA on appeal. Consequently, this prejudice 

inquiry overlaps with Morales’s claim that he was denied the opportunity to submit 

evidence, to which we turn next. Because we conclude below that Morales did not 

suffer prejudice from the absence of additional evidence, we reject his ineffective 

assistance of counsel argument. 

Morales’s final claim is that the IJ, and in turn the BIA, denied him the chance 

to obtain further evidence that would have changed the outcome of his case. 

Procedural due process guarantees a petitioner “a reasonable opportunity to present 

26 See Calderon-Rosas, 957 F.3d at 388. 

27 Id.

28 This case is distinguishable from Calderon-Rosas, where we found the 

petitioner’s attorney to be incompetent for failing to submit easily obtainable medical 

evidence. See 957 F.3d at 388. Though Morales’s prior attorney did not submit 

corroborating medical records before the merits hearing, counsel submitted an 

affidavit from Morales’s wife describing her conditions and elicited credible 

testimony from Morales at the hearing regarding the care he provided to her. Morales 

further points to his prior attorney’s affidavit, stating it was error not to object to the 

IJ’s denial of the continuance. However, the affidavit bases this conclusion entirely on 

Ignatov, which we have noted is both non-precedential and distinguishable. 
8

evidence on his behalf.”29 For us to conclude Morales was deprived of due process, he 

must show both that he was deprived of the ability to present certain evidence and that 

he suffered prejudice as a result.

30 We lack jurisdiction to second-guess the BIA’s 

determination of whether the evidence Morales offers amounts to a showing of 

exceptional and extremely unusual hardship.31

Like the BIA, we resolve this claim on the prejudice prong. Although the IJ 

found that Morales could not corroborate certain elements of his application, she ruled 

in the alternative that, even assuming Morales could provide all the evidence he sought, 

he still could not show his son and wife would experience the requisite degree of

hardship. She reached this conclusion by relying primarily on Morales’s testimony at 

the hearing, which she found generally credible. On appeal, the BIA considered 

Morales’s additional evidence, but it found the new documentation did not show “the 

potential to alter the outcome of his proceedings.”32 For example, it noted that “[t]hese 

[new] records do not undermine the [IJ’s] finding that [Morales’s] wife appears able to 

manage her own medical needs.”33

29 Cham, 445 F.3d at 691 (alteration omitted) (quoting Abdulrahman v. 

Ashcroft, 330 F.3d 587, 596 (3d Cir. 2003)).

30 Serrano-Alberto, 859 F.3d at 213. Prejudice, again, means the deprivation of 

process must have had the potential to affect the outcome of the proceedings. Id.

31 See Hernandez-Morales v. Att’y Gen., 977 F.3d 247, 249 (3d Cir. 2020).

32 J.A. at 13. This point represents yet another divergence from CalderonRosas. There, we observed with disapproval that the BIA had faulted the petitioner for 

not establishing what evidence he would have presented, but for his counsel’s 

ineffectiveness, while also refusing to consider new evidence on appeal. See 957 F.3d

at 383, 387–88. Here, by contrast, the BIA fully considered the new evidence offered 

by Morales on appeal.

33 J.A. at 14.
9

From our review of the record, we see no reason to disturb the BIA’s conclusion.

Morales has not pointed to any evidence with the potential to alter the IJ’s alternative 

ruling that his application fails on the hardship prong. Consequently, Morales cannot 

show prejudice, which in turn means his Fifth Amendment claims—including his 

ineffective assistance of counsel claim—must fail. 

For the foregoing reasons, we will deny the petition.