Douglas Flores-Gonzalez v. Loretta E. Lynch

669 F. App'x 478

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 11, 2016
• Docket: 13-71098
• Status: Unpublished

Opinion

MEMORANDUM *

Petitioner Douglas Flores-Gonzalez petitions for review of the Board of Immigration Appeals’ (“BIA”) decision denying his untimely motion to reopen based on ineffective assistance of counsel. As the parties are familiar with the facts, we do not recount them here. We grant the petition and remand the case for further proceedings consistent with this disposition.

The BIA determined that Flores-Gonzalez was not prejudiced by his former attorneys’ failure to inform him of Special Im~ migrant Juvenile Status (“SIJS”), 8 U.S.C. § 1101(a)(27)(J), because there was no evidence that Flores-Gonzalez had a qualifying juvenile court order. However, as the government concedes, the BIA did not address Flores-Gonzalez’s argument that his attorneys’ ineffectiveness prevented him from obtaining a juvenile court order required for SUS. The government argues that Flores-Gonzalez would not have qualified for such an order because the evidence does not support that he could not be reunited with one or both of his parents as a result of “abuse, neglect, abandonment, or similar basis found under State law.” 8 U.S.C. § 1101(a)(27)(J); see also 8 C.F.R. § 204.11. But, “we cannot deny a petition for review on a ground that the BIA itself did not base its decision.” Hernandez-Cruz v. Holder, 651 F.3d 1094, 1110 (9th Cir. 2011).

The BIA also determined that Flores-Gonzalez failed to fully comply with the procedural requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). See Iturribarria v. INS, 321 F.3d 889, 900 (9th Cir. 2003) (setting forth Lozada requirements). However, the BIA did not address Flores-Gonzalez’s argument that he was excused from doing so because the ineffectiveness was plain on the face of the administrative record. See Castillo-Perez v. INS, 212 F.3d 518, 525 (9th Cir. 2000) (noting that “a failure to comply with Lo-zada requirements is not necessarily fatal to a motion to reopen ... when ‘[tjhe facts are plain on the face of the administrative record’ ” (citation omitted)).

Accordingly, we remand so that the BIA may fully address all of the parties’ arguments in the first instance. See Su Hwa She v. Holder, 629 F.3d 958, 963-64 (9th Cir. 2010) (“Rather than countenance a decision that leaves us to speculate based on an incomplete analysis, we remand the case to the BIA for clarification.”); Andia v. Ashcroft, 359 F.3d 1181, 1184 (9th Cir. 2004) (per curiam) (“If we conclude that the BIA’s decision cannot be sustained upon its reasoning, we must remand to allow the agency to decide any issues remaining in the case.”). We remand the entire petition because the arguments the BIA failed to address may impact the other issues raised by Flores-Gonzalez in his petition for review.

The petition for review is GRANTED and we REMAND to the BIA for further proceedings consistent with this disposition.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.