Luis Urcino v. Jefferson Sessions

FILED NOT FOR PUBLICATION DEC 21 2017 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT LUIS MARTIN URCINO, Nos. 13-70378 14-73760 Petitioner, Agency No. A070-761-156 v. JEFFERSON B. SESSIONS III, Attorney MEMORANDUM* General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted December 5, 2017 Pasadena, California Before: WARDLAW and GOULD, Circuit Judges, and PIERSOL,** District Judge. Luis Martin Urcino, a native and citizen of Mexico, petitions for review of the Immigration Judge’s (IJ) denial of his motion for a continuance, affirmed by * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Lawrence L. Piersol, United States District Judge for the District of South Dakota, sitting by designation. the Board of Immigration Appeals (BIA).1 In a consolidated appeal, Urcino also petitions for review of the BIA’s denial of his motion to reopen. We have jurisdiction under 8 U.S.C. § 1252(a)(1), and we grant the petition for review of the denial of the motion for a continuance without reaching the denial of the motion to reopen. We remand to the BIA for further proceedings consistent with this disposition. 1. Urcino seeks to supplement the administrative record with a complete copy of his state court criminal docket sheet. Appellate courts may take judicial notice of matters of record in other court proceedings, including those occurring during pendency of the federal appeal, even if those records are not part of the administrative record. See Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002). Judicial notice is appropriate in these circumstances “to ensure that . . . judicial ignorance is not insulated from review through hyper-technical application of the general rule that the court can consider only evidence considered” in the proceedings below. See Singh v. Ashcroft, 393 F.3d 903, 907 (9th Cir. 2004). 1 At oral argument, Urcino’s counsel indicated that Urcino would not contest the denial of the motion for continuance. Urcino, however, properly challenged the denial of the motion for continuance in his opening brief, placing the issue squarely before us. We construe counsel’s remarks at oral argument to limit the inquiry at oral argument only and conclude that Urcino preserved his arguments as to the motion for a continuance by raising them in his opening brief. 2 Because the state court criminal docket sheet that Urcino wishes to add to the administrative record is publicly available, credible, and already partially included in the record, we grant Urcino’s motion. 2. The IJ abused her discretion by denying Urcino’s motion for a continuance. Under 8 C.F.R. § 1003.29, an IJ “may grant a motion for continuance for good cause shown.” “The question whether denial of a continuance in an immigration proceeding constitutes an abuse of discretion cannot be decided through the application of bright-line rules; it must be resolved on a case by case basis.” Baires v. INS, ...

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