Gonzalez Arias v. Holder

334 F. App'x 69

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 26, 2009
• Docket: No. 05-70662
• Status: Published

Opinion

MEMORANDUM

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Sergio Antonio Gonzalez Arias, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order summarily affirming 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.

Gonzalez Arias argued before the BIA that the IJ violated due process by denying his application for relief on the ground that he failed to update his fingerprints before his removal hearing. The BIA erred in not addressing Gonzales Arias’ argument. 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”).

Moreover, the agency 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. We therefore remand for reconsideration of Gonzalez Arias’ appeal. See id. at 1292-95; see also Karapetyan v. Mukasey, 543 F.3d 1118, 1129-32 (9th Cir.2008).

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.