Benites v. Gonzales

139 F. App'x 859

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 15, 2005
• Docket: No. 04-72719
• Status: Published

Opinion

MEMORANDUM

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Nicolas Garcia Benites and his wife, Francisca Garcia Flores, natives and citizens of Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”) summary affirmance of an immigration judge’s (“IJ”) denial of cancellation of removal for failure to timely file the application. Jurisdiction is conferred by 8 U.S.C. § 1252. We review purely legal questions de novo, Martinez-Garcia v. Ashcroft, 366 F.3d 732, 733 (9th Cir.2004). We grant the petition for review and remand for further proceedings.

The IJ deemed the petitioners’ request for cancellation of removal abandoned because they did not file an application prior to the deadline imposed by the IJ. See 8 C.F.R. § 1003.31(c).

The BIA, however, did not address the petitioners’ claim that ineffective assistance of counsel prevented them from timely filing their application. We therefore remand for the agency to address this claim in the first instance. See Silva-Calderon v. Ashcroft, 371 F.3d 1135, 1137 (9th Cir.2004) (order).

PETITION FOR REVIEW GRANTED; REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.