Aray Laurencio Cespedes v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 1, 2022
• Docket: 20-71825
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 1 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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

2 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 at

1080–81.

3 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.