Filimonova

MEMORANDUM *

Petitioner Ekaterina Filimonova, a citizen of Russia, petitions for review from a *35 Board of Immigration Appeals (“BIA”) decision affirming the order of an Immigration Judge (“IJ”) refusing to grant her a continuance so that she could obtain counsel and pretermitting her application for asylum, withholding of removal, and relief under the Convention Against Torture. For the reasons that follow, we hold that the IJ violated Filimonova’s statutory right to counsel and thus abused his discretion.

We review an IJ’s denial of a request for a continuance for abuse of discretion. See Nakamoto v. Ashcroft, 363 F.3d 874 , 883 n. 6 (9th Cir.2004). We determine de novo whether such denial violates a statutory or constitutional right. See Mendoza-Mazariegos v. Mukasey, 509 F.3d 1074, 1079-80 (9th Cir.2007); Hernandez-Gil v. Gonzales, 476 F.3d 803 , 804 n. 1 (9th Cir. 2007). 1 The “question whether [a] denial of a continuance ... constitutes an abuse of discretion ... must be resolved on a case by case basis according to the facts and circumstances of each case.” Baires v. INS, 856 F.2d 89, 91 (9th Cir.1988). We consider such factors as “the number of prior continuances…