Caballero De Martinez v. Mukasey

268 F. App'x 679

Opinion

MEMORANDUM

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Nora Lissette Caballero de Martinez, and her children Linduara Isabel, Fredy Armando, and Sinthia Dahena, are natives and citizens of Honduras. They petition pro se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing their appeal for lack of jurisdiction on the ground that they waived their right to appeal in exchange for a grant of administrative voluntary departure. We review questions of jurisdiction de novo. See Barron v. Ashcroft, 358 F.3d 674, 677 (9th Cir.2004). We grant the petition for review and remand.

We conclude that the issue of whether petitioners’ waiver of appeal was knowing and intelligent was properly before the BIA, and should have been addressed by the agency. In their notice of appeal to the BIA, petitioners exhausted the issue by contending that the proceeding was not translated into their native Spanish and that they did not understand the consequences of the decision. See Ladha v. INS, 215 F.3d 889, 903 (9th Cir.2000) (holding that issues raised in a notice of appeal are properly exhausted); see also Sembiring v. Gonzales, 499 F.3d 981, 990 (9th Cir.2007) (“It is a long-established principle that the submissions of pro se aliens should be liberally construed.”). Accordingly, we remand the issue to the BIA to make a determination in the first instance. See INS v. Ventura, 537 U.S. 12, 16, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam).

PETITION FOR REVIEW GRANTED; REMANDED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.