Hernandez-Pinon v. Immigration & Naturalization Service

Ninth Circuit

Hernandez-Pinon v. Immigration & Naturalization Service

31 F. App'x 402

Court of Appeals for the Ninth Circuit·Decided February 20, 2002·No. No. 00-70866, INS A72-665-334; INS No. A72-665-334·Published

Opinion

MEMORANDUM

**

Luis Jovany Hernandezr-Pinon, a native and citizen of Guatemala, petitions for review of an order of the Board of Immigration Appeals (“BIA”) dismissing his appeal from an Immigration Judge’s (“IJ”) order denying his application for asylum and withholding of deportation. We grant the petition.

Prior to the BIA’s decision, Hernandez^ Pinon filed a motion for consideration of his brief after it had been rejected as untimely, supported by an affidavit of counsel and a postal receipt, indicating the brief was delivered to the BIA’s post office address on the due date but after the BIA’s courier had gathered the mail that day. Because the record does not indicate [403]*403whether the BIA ruled on this motion, we remand to the BIA with instructions to rule on Hernandez-Pinon’s “Motion for Consideration of Late-Filed Brief.” See Escobar-Ramos v. INS, 927 F.2d 482, 485-86 (9th Cir.1991). If the BIA finds the brief was timely filed, it should consider on the merits the arguments contained therein.

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 may be provided by Ninth Circuit Rule 36-3.

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MEMORANDUM

**

Luis Jovany Hernandezr-Pinon, a native and citizen of Guatemala, petitions for review of an order of the Board of Immigration Appeals (“BIA”) dismissing his appeal from an Immigration Judge’s (“IJ”) order denying his application for asylum and withholding of deportation. We grant the petition.

Prior to the BIA’s decision, Hernandez^ Pinon filed a motion for consideration of his brief after it had been rejected as untimely, supported by an affidavit of counsel and a postal receipt, indicating the brief was delivered to the BIA’s post office address on the due date but after the BIA’s courier had gathered the mail that day. Because the record does not indicate [403]*403whether the BIA ruled on this motion, we remand to the BIA with instructions to rule on Hernandez-Pinon’s “Motion for Consideration of Late-Filed Brief.” See Escobar-Ramos v. INS, 927 F.2d 482, 485-86 (9th Cir.1991). If the BIA finds the brief was timely filed, it should consider on the merits the arguments contained therein.

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 may be provided by Ninth Circuit Rule 36-3.

Hernandez-Pinon v. Immigration & Naturalization Service, 31 F. App'x 402 (9th Cir. 2002).

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