NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NIVARDO SANTIAGO-SANCHEZ, 

Petitioner, 

 v. 

MERRICK B. GARLAND, Attorney 

General, 

Respondent.

No. 20-71905 

Agency No. A216-073-834 

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted September 2, 2021**

Seattle, Washington

Before: McKEOWN and GOULD, Circuit Judges, and RAKOFF,*** District 

Judge.

Nivardo Santiago-Sanchez seeks review of the Board of Immigration 

Appeals’ (“BIA”) dismissal of an immigration judge’s (“IJ”) denial of his request 

* 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 Jed S. Rakoff, United States District Judge for the 

Southern District of New York, sitting by designation.

FILED

SEP 7 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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for a continuance. Except as to one of Santiago-Sanchez’s claims, we have 

jurisdiction under 8 U.S.C. § 1252, and we deny the petition for review.

The IJ did not abuse its discretion in concluding that there was no good 

cause to grant the continuance. The agency considered the reasonableness of 

Santiago-Sanchez’s conduct and the fact that Santiago-Sanchez had been granted a

prior continuance. See Peng v. Holder, 673 F.3d 1248, 1253 (9th Cir. 2012) 

(“[T]he IJ—and, on appeal, the BIA—should consider factors including (1) the 

nature of the evidence excluded as a result of the denial of the continuance, (2) the 

reasonableness of the immigrant’s conduct, (3) the inconvenience to the court, and 

(4) the number of continuances previously granted.” (internal quotation marks 

omitted)).

Nor did the IJ violate Santiago-Sanchez’s right to counsel in declining to 

grant the continuance. “Absent a showing of clear abuse, we typically do not 

disturb an IJ’s discretionary decision not to continue a hearing,” but in considering 

whether a reasonable time was provided, 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 v. Gonzales, 403 F.3d 1094, 

1099 (9th Cir. 2005). Even assuming that Santiago-Sanchez did not knowingly 
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and voluntarily waive his right to counsel, the IJ did not violate SantiagoSanchez’s right to counsel in declining to grant a continuance, as Santiago-Sanchez

had seven months to seek counsel, during which time he was not detained. See 

United States v. Moriel-Luna, 585 F.3d 1191, 1201–02 (9th Cir. 2009).

Finally, Santiago-Sanchez contends that the IJ violated his due process rights 

by failing to sufficiently explain “what the relief was and what the procedures were 

for requesting the relief.” We lack jurisdiction to review this claim because 

Santiago-Sanchez did not exhaust it before the BIA, and the “BIA could have 

addressed [Santiago-Sanchez’s] claim if [he] had raised it.” See Sola v. Holder, 

720 F.3d 1134, 1135–36 (9th Cir. 2013) (per curiam). We dismiss the petition as 

to that claim.

PETITION DENIED IN PART and DISMISSED IN PART.