NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 1 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ARAY LAURENCIO CESPEDES, No. 20-71825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 …
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