NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FERNANDO TORRES MORALES,

 Petitioner,

 v.

MERRICK B. GARLAND, U.S. Attorney 

General,

Respondent.

No. 22-569

Agency No. A063-257-176

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted April 21, 2023**

Pasadena, California

Before: WARDLAW and KOH, Circuit Judges, and MCMAHON,

*** District 

Judge.

Fernando Torres Morales, a native and citizen of Mexico, petitions this 

court for review of the dismissal by the Board of Immigration Appeals (“BIA”) 

of his appeal of the decision by the Immigration Judge (“IJ”) ordering him 

 * 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 Colleen McMahon, United States District Judge for 

the U.S. District Court for the Southern District of New York, sitting by 

designation.

FILED

APR 25 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2

removed from the United States. We have jurisdiction under 8 U.S.C. § 1252, 

and we deny the petition in part and grant and remand in part.

1. We review Torres Morales’s due process challenges de novo. 

Chavez-Reyes v. Holder, 741 F.3d 1, 3 (9th Cir. 2014). “When a petitioner does 

not waive the right to counsel, ‘IJs must provide [the petitioner] with reasonable 

time to locate counsel and permit counsel to prepare for the hearing.” Arrey v. 

Barr, 916 F.3d 1149, 1158 (9th Cir. 2019) (quoting Biwot v. Gonzales, 403 F.3d 

1094, 1098–99 (9th Cir. 2005)). The inquiry into whether the time provided 

was reasonable is highly fact specific, and we consider:

the realistic time necessary to obtain counsel; the time 

frame of the requests for counsel; the number of 

continuances; any barriers that frustrated a petitioner’s 

efforts to obtain counsel, such as being incarcerated or 

an inability to speak English; and whether the 

petitioner appears to be delaying in bad faith.

Biwot, 403 F.3d at 1099.

The IJ granted two continuances, one of which was to allow service of 

Torres Morales’s Notice to Appear (“NTA”) and the other to allow time to find 

counsel. These continuances totaled 21 business days. Torres Morales was 

detained and is not proficient in English, two facts that we have consistently 

recognized frustrate a noncitizen’s ability to obtain counsel. See Usubakunov v. 

Garland, 16 F.4th 1299, 1305 (9th Cir. 2021). Moreover, the record 

demonstrates that Torres Morales was not delaying in bad faith: he reported to 

the IJ at his final hearing that he had successfully obtained a criminal attorney 
3

but had not yet found an immigration attorney. In fact, Torres Morales was 

eventually successful in obtaining an immigration attorney as evidenced by the 

fact that he was represented before the BIA. Considering the factual 

circumstances of this case, we hold that the IJ’s denial of a continuance was 

error that violated Torres Morales’s right to counsel.1

 See Usubakunov, 16 

F.4th at 1305–06 (finding the right to counsel violated where petitioner was 

detained and did not speak English, there was evidence that the petitioner was 

not delaying in bad faith, and the IJ granted four continuances over six months); 

Biwot, 403 F.3d at 1099 (finding the right to counsel violated where petitioner 

was detained, had basic English skills, and was diligent in his efforts to obtain

counsel and was granted two continuances for a total of five business days).

2. Torres Morales’s due process challenge to the IJ’s admission of 

supporting documents from the Department of Homeland Security (“DHS”) 

fails because he has failed to show prejudice. “Substantial prejudice is 

established when ‘the outcome of the proceeding may have been affected by the 

alleged violation.’” Grigoryan v. Barr, 959 F.3d 1233, 1240 (9th Cir. 2020)

1 The government argues that remand is unnecessary because Torres Morales 

has failed to show prejudice. However, a noncitizen who has been denied 

counsel need not show prejudice. See Montes-Lopez v. Holder, 694 F.3d 1085, 

1093–94 (9th Cir. 2012). The government’s reliance on Gomez-Velazco v. 

Sessions, 879 F.3d 989 (9th Cir. 2018), is misplaced. Unlike Gomez-Velazco, 

Torres Morales was denied counsel at the final stage of his removal proceeding, 

and thus his attorney had no opportunity to “remedy any damage done by [the] 

client’s un-counseled admissions or waivers.” Zuniga v. Barr, 946 F.3d 464, 

471 n.10 (9th Cir. 2019) (quoting Gomez-Velazco, 879 F.3d at 944)).
4

(quoting Colmenar v. I.N.S., 210 F.3d 967, 971 (9th Cir. 2000)). Torres 

Morales admitted each of the factual allegations in his NTA, and the IJ found 

that DHS’s supporting documents were “simply corroborative of his testimony.” 

Because Torres Morales does not contest his removability and admitted all 

factual allegations in his NTA, no further evidence was necessary, and the IJ’s 

admission of DHS’s supporting documents would not have affected the 

outcome of the proceeding. See Perez-Mejia v. Holder, 663 F.3d 403, 414 (9th 

Cir. 2011).

3. The IJ did not err in failing to advise Torres Morales about his 

apparent eligibility to apply for withholding of removal and CAT relief or in 

failing to ask follow-up questions about his fear of persecution or torture. The 

IJ asked, “[A]re you afraid of anyone in Mexico would harm you or torture 

you?” Torres Morales responded, “Well I’m afraid to go back to Mexico 

because of the way that the current situation is with the crime and everything, 

but for me to be specifically afraid like for somebody to come and kill me, no.” 

Torres Morales has failed to raise a reasonable possibility that he is eligible for 

withholding or relief under CAT, which would normally trigger the IJ’s 

obligation to advise him about his apparent eligibility for withholding or CAT 

relief. See C.J.L.G. v. Barr, 923 F.3d 622, 626 (9th Cir. 2019) (en banc). 

Moreover, once Torres Morales testified that he did not have a specific fear of 

harm, the IJ did not need to develop the record further because this testimony 

established that there is no basis for relief. See Zamorano v. Garland, 2 F.4th 
5

1213, 1226 (9th Cir. 2021) (holding that, once a petitioner stated that he did not

“know how to start a life in a new country,” the IJ was not required to develop 

the record further because petitioner’s “testimony established that there was no 

basis for [relief]”).

4. The BIA abused its discretion in denying administrative closure.2

 

The BIA found that Torres Morales “is not contesting or challenging the nature, 

validity, or finality of his criminal conviction rendering him removable from the 

United States.” However, the BIA has held that a noncitizen challenges the 

validity of his underlying petition when the appeal or post-conviction relief 

“relates to the issue of guilt or innocence or concerns a substantive defect in the 

criminal proceedings.” Matter of J.M. Acosta, 27 I. & N. Dec. 420, 432 (BIA 

2018); see also Matter of Conde, 27 I. & N. Dec. 251, 255 (BIA 2018) (“[W]e 

consider convictions that have been vacated based on procedural and 

substantive defects in the underlying criminal proceedings as no longer valid for 

immigration purposes.”). Torres Morales’s state habeas petition challenges his 

criminal conviction based on ineffective assistance of counsel. Under the BIA’s 

precedent, this is a challenge to the validity of Torres Morales’s conviction. See

2 The government argues that we do not have jurisdiction over this question 

because Torres Morales’s removal order was based on his aggravated felony. 

See 8 U.S.C. § 1252(a)(2)(C). However, we are not deprived of jurisdiction 

over “a procedural motion that rests on a ground independent of the conviction 

that triggers the bar.” See Garcia v. Lynch, 798 F.3d 876, 881 (9th Cir. 2015). 

To the extent that the government argues that this rule is clearly irreconcilable 

with Nasrallah v. Barr, 140 S. Ct. 1683 (2020), that case did not decide how the 

jurisdiction-stripping provision applies to procedural motions. See id. at 1688.
6

Matter of J.M. Acosta, 27 I. & N. Dec. at 432; Matter of Conde, 27 I. & N. Dec. 

at 255. Because the BIA’s denial of administrative closure relied in part on this 

erroneous application of its precedent, we remand to the BIA for 

reconsideration of Torres Morales administrative closure request.

3

PETITION DENIED in part and GRANTED and REMANDED in part.

4

3 Because our review is limited to the administrative record, Torres Morales’s 

motion for judicial notice of records related to his state habeas petition, Dkt. 34,

is DENIED. See Fisher v. I.N.S., 79 F.3d 955, 963 (9th Cir. 1996) (en banc).

4 Torres Morales’s motion to stay removal, Dkts. 3, 11, is DENIED. The 

temporary stay of removal remains in effect until the mandate issues.