                                                                            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                            NOT FOR PUBLICATION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.
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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, 856 F.2d 89, 91 (9th Cir. 1988); see also Cui v. Mukasey,

538 F.3d 1289, 1292 (9th Cir. 2008) (listing factors to consider in reviewing a

denial of a motion for a continuance).

      In this case, the denial of the motion for a continuance was an abuse of

discretion because, at the time of the denial, the IJ knew that the conviction

underlying Urcino’s section 212(a)(2)(A)(i)(II) and section 212(a)(2)(C) grounds

for removal was infirm, and that Urcino’s criminal attorneys were working with

the state trial court to have the conviction vacated, a goal that was ultimately

achieved in August 2012—even before the IJ issued a written decision. Urcino’s

vacated conviction is material to Urcino’s eligibility for relief from removal

because, although Urcino was also removable under section 212(a)(6)(A)(i) as an


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alien not admitted or paroled, that ground alone would not have barred Urcino

from seeking a waiver under INA section 212(h) and adjustment of status. Nor

should the IJ have discounted Urcino’s request for additional time merely because

Urcino had already requested multiple continuances to obtain a lawyer and to

communicate with counsel during his detention at the Theo Lacy Correctional

Facility. Urcino’s request for additional time was limited to the amount of time it

would take for the state trial judge to act on Urcino’s pending petition; it was not

indefinite.

      Accordingly, we remand to the BIA to determine how Urcino’s vacated

conviction and updated plea affect Urcino’s eligibility for relief, and to consider

whether Urcino should be paroled to the United States to pursue such relief.

      PETITION GRANTED and REMANDED.




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