Aray Laurencio Cespedes v. Merrick Garland

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 1 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARAY LAURENCIO CESPEDES, No. 20-71825
Petitioner, Agency No. A203-700-477
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 13, 2022
San Francisco, California
Before: W. FLETCHER and KOH, Circuit Judges, and KANE,** District Judge.
Aray Laurencio Cespedes (“Petitioner”), a native and citizen of Cuba,
petitions for review of an order of the Board of Immigration Appeals (“BIA”)
dismissing her appeal from an order of the Immigration Judge (“IJ”) denying her
application for asylum, withholding of removal, and protection under the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Yvette Kane, United States District Judge for the
Middle District of Pennsylvania, sitting by designation.
Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C.
§ 1252. We grant the petition for review and remand to the BIA for proceedings
consistent with this disposition.
“Where, as here, the BIA agrees with the IJ decision and also adds its own
reasoning, we review the decision of the BIA and those parts of the IJ’s decision
upon which it relies.” Duran-Rodriguez v. Barr, 918 F.3d 1025, 1027–28 (9th Cir.
2019). We review for abuse of discretion an IJ’s denial of a continuance. Ahmed
v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009).
Petitioner argues that the IJ’s denial of her first and only motion for a
continuance was a clear abuse of discretion. We agree. An IJ’s discretion to grant
or deny a continuance for “good cause shown,” 8 C.F.R. § 1003.29, is “not without
limits,” Ahmed, 569 F.3d at 1012. The “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.’” An Na Peng v. Holder, 673 F.3d 1248, 1253 (9th Cir. 2012) (quoting
Ahmed, 569 F.3d at 1012).
Here, neither the IJ nor the BIA analyzed the Ahmed factors. Petitioner
moved for a continuance because she had not yet received evidence in support of
her application. The IJ summarily denied the motion on the eve of the merits
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hearing.
The IJ not only failed to address the first Ahmed factor—the nature of the
evidence excluded—but also prohibited Petitioner from describing the evidence
she hoped to obtain from Cuba. Rather than making an “individualized inquiry”
into Petitioner’s circumstances, Mendoza-Mazariegos v. Mukasey, 509 F.3d 1074,
1080 (9th Cir. 2007), the IJ curtailed her testimony. Thus, we reject the
government’s contention that Petitioner must “explain exactly what evidence [she]
would have presented” had the IJ granted a continuance. Cf. Colmenar v. INS, 210
F.3d 967, 972 (9th Cir. 2000).
The IJ also failed to consider the second Ahmed factor—the reasonableness
of Petitioner’s conduct. The IJ failed to articulate why it was unreasonable for
Petitioner, a non-English-speaker in detention without counsel who had less than
ninety days to obtain and translate documents from Cuba, to request one thirty-day
continuance four days before the deadline for the submission of evidence and over
two weeks in advance of the merits hearing. The IJ rebuked Petitioner for bringing
evidence to the merits hearing, but because the IJ denied the continuance one day
before the hearing, Petitioner’s only option was to bring the evidence in her
possession to the hearing. These circumstances do not suggest that Petitioner
conducted herself unreasonably. See, e.g., Mendoza-Mazariegos, 509 F.3d at1080–81.
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Nor did the IJ consider the third and fourth Ahmed factors. The IJ provided
no explanation of how a timely first request for a continuance would have
inconvenienced the immigration court.
By “failing to take into account any of the facts and circumstances of
[Petitioner]’s case that were relevant to the grant or denial of a continuance,” see
Ahmed, 569 F.3d at 1014, the IJ abused her discretion, and the BIA did not cure the
IJ’s errors, Pleitez-Lopez v. Barr, 935 F.3d 716, 719 (9th Cir. 2019); cf. Hui Ran
Mu v. Barr, 936 F.3d 929, 936 (9th Cir. 2019). We remand for a full rehearing on
an open record at which Petitioner can present all available evidence in support of
her application.
In light of our conclusion that the agency abused its discretion in denying the
motion for a continuance, we need not address Petitioner’s due process claims.
PETITION GRANTED AND REMANDED.
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