Ebochie-Chukwudi v. Holder

314 F. App'x 966

Opinion

MEMORANDUM

Footnotes

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Anthony Ebochie-Chukwudi, a native and citizen of Nigeria, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) removal order. We have jurisdiction under 8 U.S.C. § 1252, and we grant the petition for review and remand for further proceedings.

The BIA concluded that Ebochie-Chuk-wudi’s failure to provide his fingerprints before his removal hearing was a sufficient reason to deem his relief application abandoned. The BIA, however, did not have the benefit of our intervening decision in Cui v. Mukasey, 538 F.3d 1289 (9th Cir.2008), which held that the denial of a continuance for fingerprint processing prior to April 2005 may be an abuse of discretion. See id. at 1292-95; see also Karapetyan v. Mukasey, 543 F.3d 1118, 1129-32 (9th Cir.2008).

Ebochie-Chukwudi further contends that the IJ abused her discretion and violated due process in refusing to continue proceedings when his attorney was unable to attend the hearing due to illness. Although Ebochie-Chukwudi raised this issue before the BIA, the BIA improperly failed to address it. See Montes-Lopez v. Gonzales, 486 F.3d 1163, 1165 (9th Cir.2007) (“[T]he BIA errs when it fails on appeal to consider and decide claims that the IJ proceedings suffered from procedural irregularity.”).

We therefore remand for reconsideration of Ebochie-Chukwudi’s appeal.

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.