FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 08-50124 Plaintiff-Appellee,

D.C. No.

v.  8:04-cr-00168-

MIGUEL MORIEL-LUNA, Miguel JVS-1

Sillas Moriel, OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Central District of California

James V. Selna, District Judge, Presiding

Argued and Submitted

August 31, 2009—Pasadena, California

Filed October 29, 2009

Before: Ronald M. Gould and Richard C. Tallman,

Circuit Judges, and Owen M. Panner, District Judge.*

Opinion by Judge Gould

*The Honorable Owen M. Panner, Senior District Judge for the District

of Oregon, sitting by designation. 

14623
COUNSEL

Jonathan D. Libby (argued), Federal Public Defender’s

Office, Los Angeles, California, for the plaintiff-appellee.

14626 UNITED STATES v. MORIEL-LUNA
Douglas F. McCormick (argued), Office of the U.S. Attorney,

Santa Ana, California, and Michael J. Raphael, Office of the

U.S. Attorney, Los Angeles, California, for the defendant-appellant. 

OPINION

GOULD, Circuit Judge:

Miguel Moriel-Luna (“Moriel”) appeals the district court’s

denial of his motion to dismiss his indictment for illegal reentry into the United States by a deported alien in violation of

8 U.S.C. § 1326. On an earlier appeal, we reversed the district

court by concluding that the Immigration Judge (“IJ”) at Moriel’s deportation hearing should have informed Moriel of possible relief under sections 212(c) and 212(h) of the

Immigration and Nationality Act (INA). We remanded to the

district court to determine whether the government could

show that the IJ’s error did not cause prejudice. On remand,

the district court concluded that there was no prejudice

because a visa was not immediately available to Moriel, a prerequisite to receiving such relief. The district court also

rejected Moriel’s new arguments that he could obtain section

212(c) relief without an immediately available visa and that

the government denied his right to counsel at his deportation

hearing. We affirm.

I

Moriel is a Mexican citizen who entered the United States

with his parents as a permanent resident in 1985 at the age of

twelve. In 1992, Moriel pleaded guilty to assault with a firearm, in violation of California Penal Code section 245(a)(2),

after he fired several gunshots at two occupants of a car and

continued shooting at them as they fled on foot. Moriel served

thirty-two months of a five-year sentence. 

UNITED STATES v. MORIEL-LUNA 14627
Upon Moriel’s release from prison in 1994, the government

initiated deportation proceedings against him. The government alleged that Moriel was deportable because his conviction involved the use of a firearm, see 8 U.S.C.

§ 1251(a)(2)(C) (1995),1 and was an aggravated felony, see 8

U.S.C. § 1251(a)(2)(A)(iii). 

An attorney entered an appearance for Moriel in October

1994, but at his April 1995 hearing Moriel appeared without

counsel. Moriel told the IJ that he spoke English, and the IJ

conducted the hearing without a translator. The IJ told Moriel

that he had a right to be represented by counsel and gave him

a list of legal-services organizations. Moriel asked for time to

find an attorney, and the IJ granted a one-week continuance.

The IJ warned Moriel, however, that if he returned without an

attorney he would not again continue the case and would

assume that Moriel would proceed pro se. When the hearing

resumed, Moriel said that he did not have an attorney, and he

answered, “Yes,” when the IJ asked him if would speak for

himself that day. Moriel did not at this hearing ask for more

time to find an attorney or indicate that he made an effort to

obtain one. 

When the IJ explained to Moriel his possible eligibility for

relief, Moriel told the IJ that his parents were legal residents

but not U.S. citizens. Moriel also told the IJ that he was single

and did not mention that he had a girlfriend. The IJ ordered

Moriel deported for having committed a crime involving the

use of a firearm and an aggravated felony, and he made an

additional oral finding that Moriel committed a crime involving moral turpitude. 

About eight months after his deportation hearing, Moriel

married a U.S. citizen, and as of 2004 the couple was still

married and had three children. According to a written decla1Unless otherwise indicated, citations to statutes refer to the versions in

effect during Moriel’s 1995 deportation proceeding. 

14628 UNITED STATES v. MORIEL-LUNA
ration by Moriel’s wife, the two met in the fall of 1994 and

became engaged “soon after.” Moriel’s wife said that she and

Moriel “would have definitely been married a few months

earlier if we had been properly advised of the impact upon my

husband’s immigration status in this country.” 

After his deportation, Moriel illegally reentered the United

States on many occasions. Moriel illegally reentered the

United States in July 1995 and was arrested for possession of

drug paraphernalia in January 2001. The government reinstated his 1995 deportation order and deported him on January 9, 2001. Immigration officials discovered Moriel in the

United States on July 26, 2001, after his arrest for domestic

violence. The government charged Moriel with violating 8

U.S.C. § 1326, which prohibits the unauthorized reentry of a

removed alien. Moriel pleaded guilty and was sentenced to

thirty months in prison. Following his release from custody in

2003, immigration authorities reinstated Moriel’s 1995 deportation order and deported him. Moriel once again illegally

reentered the United States, and immigration officials found

him once again in July 2004. The government then charged

Moriel with violating 8 U.S.C. § 1326. 

All of this sounds a bit like a repeating refrain, as if Moriel

was in a revolving door and continuously left the United

States via deportation only very shortly thereafter to return

illegally. However, something new was added in this case.

This time Moriel challenged his underlying 1995 deportation

order and filed a motion to dismiss the government’s indictment on the ground that the IJ violated his due-process rights

by not informing him of the opportunity to seek discretionary

relief under sections 212(c) and 212(h) of the INA. The district court denied Moriel’s motion. Moriel then pleaded guilty,

reserving his right to appeal the district court’s decision. Moriel received a seventy-month sentence for his illegal reentry.

In an unpublished disposition, we reversed the district

court. United States v. Moriel-Luna, 244 F. App’x 810 (9th

UNITED STATES v. MORIEL-LUNA 14629
Cir. 2007). We concluded that the record “disclosed sufficient

information to infer that [Moriel] was eligible to petition for

adjustment of status under INA § 245(a) along with a petition

for waiver of deportation under either former INA § 212(c) or

INA § 212(h)” and that the IJ “incorrectly informed Moriel

that he was ineligible to apply for any relief from deportation.” Id. at 812. We further held that Moriel presented a

prima facie case of prejudice from the IJ’s error of not

informing him of section 212(c) relief and remanded so the

district court could “determine whether the government can

demonstrate that a visa was not immediately available, and

thus Moriel is not entitled to relief.” Id. at 813. Without an

immediately available visa, Moriel could not adjust his status

under section 245(a). Id.

On remand, and after a hearing to determine the facts, the

district court again denied Moriel’s motion to dismiss the

indictment, this time on the ground that the government had

proven any errors by the IJ did not cause prejudice because

there was no visa immediately available to Moriel at the time

of his deportation hearing. The district court concluded that a

visa would not have been available for Moriel unless he had

applied for one in 1990. The district court determined that

mere speculation that Moriel could have obtained a visa in the

future if he married his U.S.-citizen girlfriend or if his parents

later applied for citizenship did not show that a visa was “immediately” available at the time of his deportation hearing. 

The district court also entertained two arguments that Moriel raised for the first time on remand: First, the district court

rejected Moriel’s argument that his state firearm-assault conviction did not establish a basis for deportation. Second, the

district court concluded that the IJ did not deny Moriel his

right to counsel by proceeding with the deportation hearing

after Moriel did not hire an attorney during the week-long

continuance. 

Moriel timely appealed the district court’s denial on

remand of his motion to dismiss the § 1326 indictment. After

14630 UNITED STATES v. MORIEL-LUNA
considering the factual record and the dispositive legal principles, we affirm.

II

We review de novo the district court’s denial of a motion

to dismiss an 8 U.S.C. § 1326 indictment when the motion to

dismiss is based on alleged due-process defects in the underlying deportation proceeding. United States v. UbaldoFigueroa, 364 F.3d 1042, 1047 (9th Cir. 2004). To prevail on

such a motion, Moriel must establish that defects in the deportation proceeding violated his due-process rights and that he

suffered prejudice as a result of those defects. Id. at 1048.

Although Moriel need not conclusively demonstrate that he

would have received relief to show prejudice, he must show

that there were “plausible grounds for relief.” United States v.

Gonzalez-Valerio, 342 F.3d 1051, 1054 (9th Cir. 2003).

III

[1] As we previously held, at the 1995 deportation hearing

the IJ should have advised Moriel that he might have been eligible for relief from deportation under the former section

212(c) of the INA, 8 U.S.C. § 1182(c). Section 212(c) granted

the Attorney General discretion to admit “[a]liens lawfully

admitted for permanent residence who temporarily proceed

abroad voluntarily and not under an order of deportation”

even if the aliens would otherwise be excluded under 8 U.S.C.

§ 1182(a). By its terms, section 212(c) offers waivers only

from a denial of admissibility, not from deportation. Therefore, in order to be eligible for section 212(c) relief, Moriel

must also have applied for and received an adjustment of status, converting his deportation hearing into an admissibility

hearing. Then, in an admissibility hearing, Moriel could have

filed a petition to immigrate, allowing him potential relief via

section 212(c). To adjust status, however, an alien must show

that “an immigrant visa is immediately available to him at the

time his application is filed.” 8 U.S.C. § 1255(a) (emphasis

UNITED STATES v. MORIEL-LUNA 14631
added); Hernandez v. Ashcroft, 345 F.3d 824, 843 (9th Cir.

2003) (“[I]n order for an applicant to be eligible for adjustment of status, an immigrant visa must be immediately available at the time of filing.”).

The district court determined that under the applicable regulations limiting the number of immigrant visas available to

particular aliens, a visa would only have been available to

Moriel had he applied for one by March 1990, approximately

five years before his deportation hearing, which he had not

done. Moriel does not contest this part of the district court’s

decision. Instead, he argues that a visa could have been immediately available to him had he married his U.S.-citizen girlfriend or had one of his parents become a U.S. citizen during

the deportation hearing. See 8 U.S.C. § 1151(b)(2)(A)(i)

(exempting immediate relatives of U.S. citizens from numerical limits on visas). Moriel contends that the IJ should have

informed him of these potential paths to obtain a visa and

granted a continuance of the hearing until one of his parents

became or Moriel married a U.S. citizen. We disagree.

[2] Moriel’s argument is unpersuasive because he did not

make the IJ aware of the engagement with his girlfriend or of

the possibility that one of his parents might become a citizen.

The IJ was required to “inform the alien of his or her apparent

eligibility to apply” for section 212(c) relief. 8 C.F.R.

§ 242.17 (1995) (emphasis added); see also United States v.

Muro-Inclan, 249 F.3d 1180, 1183 (9th Cir. 2001). Yet

“[u]ntil the [alien] himself or some other person puts information before the judge that makes such eligibility ‘apparent,’

this duty does not come into play.” Moran-Enriquez v. INS,

884 F.2d 420, 422 (9th Cir. 1989). We do not require IJs to

speculate about the possibility of anticipated changes of circumstances and advise aliens of facts not suggested in the

record. See id. (“IJs are not expected to be clairvoyant; the

record before them must fairly raise the issue . . . .”).

14632 UNITED STATES v. MORIEL-LUNA
[3] Upon direct questioning, Moriel told the IJ that he was

single. He mentioned neither his girlfriend nor any pending

engagement. He also told the IJ that his parents were not citizens, and the record does not indicate that his parents applied

for naturalization or were even eligible to apply at the time of

the deportation hearing. This advice from Moriel to the IJ renders fatal his contention that he should have been advised of

potential changes that might have rendered a visa immediately

available. Neither the likelihood of a marriage of Moriel or

the likelihood of parental citizenship was apparent on the

record before the IJ, and the IJ was not required to inform

Moriel of these potential methods of making a visa immediately available to him.2

See Bui v. INS, 76 F.3d 268, 271 (9th

Cir. 1996) (“The regulations do not require the IJ to scour the

entire record or to interrogate an alien regarding all possible

avenues of relief.”). Stated another way, our precedent

requires that an IJ advise an immigrant of potential avenues

of relief that are apparent from the record before the IJ. However, our precedent does not require that an IJ act creatively

to advise an immigrant of ways in which his legal prospects

at forestalling deportation might improve with fundamental

changes in his status. 

2United States v. Lopez-Velasquez does not demand a different result.

568 F.3d 1139 (9th Cir. 2009). We held in Lopez-Velasquez that it is error

for an IJ to not inform an alien of potential section 212(c) relief where the

alien has not continuously resided in the United States for the requisite

seven years but would accrue enough time if he or she appealed the IJ’s

decision. Id. at 1145. We reasoned that where the record raises a reasonable possibility that an alien may be eligible for relief, the IJ must so

advise. Id. at 1143. Here, Moriel did not make the IJ remotely aware of

his engagement or of his parents’ possible citizenship application, so the

record did not raise a reasonable possibility of relief in the event of an

appeal or continuance. Moreover, an appeal alone would have been

enough for the alien in Lopez-Velasquez to receive relief because he only

needed the additional time an appeal would provide. Id. at 1144-45. Moriel, on the other hand, would have needed to take additional steps beyond

an appeal or continuance. He needed the fundamental circumstances of his

status to be changed; he needed not only time but also to either marry his

U.S.-citizen girlfriend or to have his parents successfully petition for citizenship. 

UNITED STATES v. MORIEL-LUNA 14633
As the district court stated, “Moriel-Luna cites no authority

for the proposition that the ‘immediately available’ requirement can be satisfied by the future possibility that an individual could take some action to place himself in a position such

that he would have a visa immediately available.” Nor does

Moriel cite any such cases on appeal.3 Instead, he relies on a

written declaration by an immigration lawyer who states that

IJs have regularly “granted a continuance of their deportation/removal hearing to allow the INS/CIS to process a relative’s naturalization application, which if granted, [would]

render the alien eligible for adjustment of status.” Yet even if

the statement is true, it refers only to filed applications awaiting processing, not applications that have yet to be filed. 

[4] Because a visa petition had neither been filed on behalf

of Moriel at the time of his hearing nor could have been filed

by either his girlfriend or his noncitizen parents, the government has persuasively shown that a visa was not immediately

available. Without an immediately available visa, Moriel

could not have adjusted his status under section 245(a); therefore, Moriel could not obtain section 212(c) relief. The IJ’s

failure to inform Moriel of his section 212(c) options did not

prejudice him.4See Ubaldo-Figueroa, 364 F.3d at 1047.

IV

Moriel also argues that he suffered prejudice when the IJ

3Moriel cites Bull v. INS, 790 F.2d 869 (11th Cir. 1986), for the proposition that he could have married his girlfriend and immediately received a

visa. But in Bull, the alien married a U.S. citizen before the deportation

proceedings commenced. See id. at 869-70. 

4Because we conclude that there is no due-process violation where the

alien does not make the IJ aware of a pending engagement to a U.S. citizen or the possibility of the alien’s parents later filing for citizenship, we

need not address a situation in which the alien does inform the IJ of a

pending engagement or possible future parental citizenship. We express no

opinion whether the scope of required advice from the IJ might have been

altered by either of these circumstances if presented. 

14634 UNITED STATES v. MORIEL-LUNA
did not inform him of potential relief under INA § 212(h),

which grants the Attorney General discretion to waive admissibility restrictions if exclusion of an alien “would result in

extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien.” 8 U.S.C.

§ 1182(h)(1)(B). 

[5] Section 212(h), like section 212(c), is capable of waiving only a denial of admissibility, not deportation. Therefore,

Moriel needed to adjust his status to receive section 212(h)

relief. Moriel could not adjust his status because a visa was

not immediately available; consequently, he was ineligible for

section 212(h) relief.

Moriel submits that he did not have to adjust his status to

receive section 212(h) relief. He relies on In re Sanchez,

which held that an alien may obtain a section 212(h) waiver

nunc pro tunc to cure a ground for inadmissibility that exists

during a deportation hearing but did not exist at the time of

a previous entry into the United States. 17 I. & N. Dec. 218,

222 (BIA 1980). Moriel argues that had the IJ informed him

of possible 212(h) relief, he could have departed and reentered the United States before his deportation order became

final and been eligible for a section 212(h) waiver without an

adjustment of status.

[6] Moriel’s argument is misplaced. If Moriel could have

been eligible for section 212(h) relief without an adjustment

of status by leaving and reentering the United States during

his deportation hearing, then he also would have been eligible

for section 212(c) relief by performing the same act. But by

remanding Moriel’s initial appeal on section 212(c) relief with

instructions to determine whether a visa was immediately

available, we implicitly rejected the possibility that Moriel

could receive section 212(c) relief without adjusting his status. Moriel does not argue on this appeal that he is eligible for

section 212(c) relief for this reason, and he cites no case holding that the government prejudiced an alien when the IJ did

UNITED STATES v. MORIEL-LUNA 14635
not mention possible section 212(c) or 212(h) relief in a

deportation hearing merely because the alien could have left

and reentered but did not do so. The district court properly

concluded that Moriel was ineligible for section 212(h) relief,

absent an adjustment of status, because he never attempted to

leave and reenter the United States prior to the finalization of

the deportation order.5

V

For the first time on remand,6 Moriel further argued that he

was eligible for section 212(c) relief without an adjustment of

status because the government did not establish that his state

5Even if Moriel did not need to adjust his status for section 212(h)

relief, the IJ’s decision not to inform him of the relief was not prejudicial.

Section 212(h) relief requires a finding that a relevant person would suffer

extreme hardship from the exclusion. 8 U.S.C. § 1182(h)(1)(B). Extreme

hardship “requires great actual or prospective injury or extreme impact on

the citizen family member, beyond the common results of deportation.”

Muro-Inclan, 249 F.3d at 1184. At the time of Moriel’s deportation, the

only persons relevant under the statute were Moriel’s parents. Yet the only

evidence of hardship to Moriel’s parents were each parent’s identical declarations that “[t]he absence of my son during his incarceration has been

very difficult on me and his family. It has devastated us emotionally and

financially.” Moriel’s parents speak only of the alleged devastation of his

incarceration, not his exclusion. See 8 U.S.C. § 1182(h)(1)(B). Moriel was

not eligible for section 212(h) relief. 

6The government asserts, without citation, that Moriel waived his new

collateral attacks on his deportation hearing by not including them in his

initial appeal. But the government conceded to the district court that “[t]he

interests of justice thus favor an expeditious resolution of [Moriel’s]

claims, even those claims raised for the first time on remand.” We exercise

our discretion to address Moriel’s new arguments. See United States v.

Kellington, 217 F.3d 1084, 1092 (9th Cir. 2000) (holding that lower courts

on remand “are free as to anything not foreclosed by the mandate”) (internal quotation omitted); see also Morrison v. Mahoney, 399 F.3d 1042,

1046 (9th Cir. 2005) (permitting review of a new argument made on

remand because the trial court had the opportunity to address it); Columbia Steel Casting Co. v. Portland Gen. Elec. Co., 111 F.3d 1427, 1443

(9th Cir. 1996) (reviewing a legal issue raised for the first time on remand

because review would not prejudice the opposing party). 

14636 UNITED STATES v. MORIEL-LUNA
firearm-assault conviction categorically satisfied the federal

firearm statute. See Taylor v. United States, 495 U.S. 575

(1990). 

At the time of Moriel’s deportation hearing, a deportable

alien was eligible for section 212(c) relief if the applicable

ground for deportation was substantially identical to a ground

for exclusion. Komarenko v. INS, 35 F.3d 432, 434 (9th Cir.

1994), overruled by Abebe v. Mukasey, 554 F.3d 1203, 1207

(9th Cir. 2009) (en banc) (per curiam). Our precedential view

of equal protection at the time of his deportation hearing

required that the government extend section 212(c) relief to

aliens facing deportation if those aliens would have been eligible for the same relief had they left the United States and

attempted to reenter. Tapia-Acuna v. INS, 640 F.2d 223, 225

(9th Cir. 1981), overruled by Abebe, 554 F.3d at 1207. 

Although his briefing is vague, when charitably construed,

Moriel’s argument is that his firearm offense was not a valid

ground for deportation and the remaining, valid grounds for

deportation are substantially similar to the “crime involving

moral turpitude” exclusion ground in section 212(a) of the

INA.

[7] Regardless of the merits of Moriel’s firearm-offense

claim,7 Moriel was still ineligible for section 212(c) relief

7Specifically, Moriel argues that the federal firearm definition, 18

U.S.C. § 921(a)(3), excludes antique firearms while the California statute

for which he was convicted, Cal. Penal Code § 245(a)(2), does not. “The

categorical approach [of Taylor v. United States] requires us to compare

the elements of the statute of conviction . . . to the generic crime . . . and

then to determine whether the full range of conduct covered by [the criminal statute] falls within the meaning of that term.” Perez v. Mukasey, 512

F.3d 1222, 1225 (9th Cir. 2008). Because on the face of the statute it is

possible for California to convict a defendant of firearm assault with an

antique firearm but the federal government cannot do the same, California

Penal Code section 245(a)(2) may not satisfy the categorical approach to

determining a federal firearm offense. See United States v. Grisel, 488

F.3d 844, 850 (9th Cir. 2007). 

UNITED STATES v. MORIEL-LUNA 14637
without an adjustment of status. Setting aside the IJ’s conclusion that Moriel was deportable for a firearm offense, the

remaining ground for deportation—crime involving moral

turpitude—was not the only ground for which Moriel was

deportable. The government charged Moriel with deportation

because he committed an aggravated felony, and the IJ’s order

of deportation adopted that ground. See 8 U.S.C.

§§ 1251(a)(2)(A)(iii) (“Any alien who is convicted of an

aggravated felony at any time after entry is deportable.”),

1101(a)(43)(F) (aggravated felony means a crime of violence

for which the term of imprisonment imposed is at least five

years); 18 U.S.C. § 16 (crime of violence means the use,

attempted use, or threatened use of physical force or involves

a substantial risk that physical force may be used in the course

of committing the offense); United States v. Romero-Rendon,

220 F.3d 1159, 1160 (9th Cir. 2000) (affirming that California

Penal Code section 245(a)(2) is a crime of violence). Because

an aggravated felony is a deportable ground for which there

was no substantially identical ground for exclusion, Moriel

could not seek section 212(c) relief without adjusting his status.8

The government also may not be able to satisfy the modified categorical

approach, which involves a “limited examination of documents in the

record of conviction to determine if there is sufficient evidence to conclude that a defendant was convicted of the elements of the generically

defined crime even though his or her statute of conviction was facially

overinclusive.” Chang v. INS, 307 F.3d, 1185, 1189 (9th Cir. 2002).

Because none of the applicable judicial records identify the weapon Moriel used, his conviction may not meet the conditions of a federal firearm

offense. 

8Our recent holding in Abebe v. Mukasey may limit section 212(c) relief

to aliens in admissibility proceedings, regardless of the grounds for deportation. 554 F.3d at 1207 (“We thus overrule Tapia-Acuna’s holding that

there’s no rational basis for providing section 212(c) relief from inadmissibility, but not deportation. . . . Since petitioner [in a deportation proceeding] was not eligible for section 212(c) relief in the first place, the BIA

could not have committed an equal protection violation by denying him

such relief.”). Because we hold that Moriel was also deportable for committing an aggravated felony, we do not reach the applicability of Abebe.

14638 UNITED STATES v. MORIEL-LUNA
VI

[8] Finally, Moriel for the first time on remand argued that

he was deprived of his right to counsel at his deportation hearing. 8 U.S.C. § 1362 guarantees an alien the right to counsel

of his or her choice at personal expense in immigration proceedings. Mendoza-Mazariegos v. Mukasey, 509 F.3d 1074,

1080 (9th Cir. 2007). “To obtain a knowing and voluntary

waiver of the statutory right to counsel, the IJ must (1) inquire

specifically as to whether petitioner wishes to continue without a lawyer; and (2) receive a knowing and voluntary affirmative response.” Id. (internal quotation omitted). Moreover,

“[w]hen an immigrant has engaged counsel and the IJ is

aware of the representation, if counsel fails to appear, the IJ

must take reasonable steps to ensure that the immigrant’s statutory right to counsel is honored.” Hernandez-Gil v. Gonzalez, 476 F.3d 803, 808 (9th Cir. 2007). In addition, an IJ

“must provide aliens with reasonable time to locate counsel

and permit counsel to prepare for the hearing.” Biwot v. Gonzales, 403 F.3d 1094, 1099 (9th Cir. 2005). 

We will uphold the IJ’s discretionary decision not to grant

a continuance absent a showing of clear abuse. Id. Whether an

IJ has provided a reasonable time to find counsel is a factintensive inquiry, consideration of which includes “any barriers that frustrated a petitioner’s efforts to obtain counsel, such

as being incarcerated or an inability to speak English.” Id.

Moreover, at the time of Moriel’s deportation hearing, Komarenko was

good law holding, among other things, that a defendant convicted of California Penal Code section 245(a)(2) was not eligible for section 212(c)

relief without an adjustment of status. 35 F.3d at 434. An IJ must inform

the respondent of his or her apparent eligibility to apply for section 212(c)

relief, and nothing about Moriel’s creative argument was apparent during

his deportation proceeding. Because then-applicable precedent weighed

heavily against Moriel’s argument, the IJ’s actions did not make the

deportation proceedings fundamentally unfair. See Ubaldo-Figueroa, 364

F.3d at 1047. 

UNITED STATES v. MORIEL-LUNA 14639
Moriel argues that he did not knowingly and voluntarily

waive his right to counsel because the IJ did not inquire specifically regarding whether he wished to continue the hearing

pro se. He also faults the IJ for not asking why the attorney

who had entered an appearance eight months earlier was not

present at the hearing and for telling Moriel that he would

expect Moriel to continue pro se if he returned without counsel after the one-week continuance. 

[9] Although the IJ did not explicitly ask Moriel if he

waived his right to counsel, the IJ was not obligated to grant

indefinite continuances if Moriel did not produce counsel but

refused to waive his right. Here, the IJ informed Moriel of his

right to counsel, asked if he would like to find an attorney,

granted a one-week continuance, and provided him with a list

of legal-services organizations in the area. The IJ certainly

gave Moriel a reasonable time to get a new lawyer or to communicate with his prior lawyer. Also, the IJ’s warning gave

Moriel notice that the IJ would consider that Moriel was proceeding pro se if he did not obtain counsel during the continuance that was given and that another continuance would not

be granted. Significantly, when the hearing resumed, Moriel

did not ask for more time to find an attorney, mention the

attorney who earlier made an appearance, or indicate that he

had tried to find an attorney. Moriel spoke English and was

not incarcerated, factors weighing against a lengthy continuance. See id. Accordingly, we hold that the IJ did not abuse

his discretion by concluding that one week was a reasonable

time for Moriel to find counsel and in telling Moriel that

returning without an attorney would result in a waiver of his

right to counsel. The IJ took reasonable steps to honor Moriel’s right to counsel. See Hernandez-Gil, 476 F.3d at 808.

VII

Moriel was ineligible to receive section 212(c) or section

212(h) relief absent an adjustment of status. In order to adjust

his status, Moriel needed an immediately available visa.

14640 UNITED STATES v. MORIEL-LUNA
Because a visa petition had neither been filed on behalf of

Moriel at the time of his hearing nor could have been filed by

either his girlfriend or his noncitizen parents, the government

has shown that a visa was not immediately available. The IJ

also did not deprive Moriel of his right to counsel. We affirm.

AFFIRMED.

UNITED STATES v. MORIEL-LUNA 14641