Lopez-Medina v. Mukasey

Ninth Circuit

Lopez-Medina v. Mukasey

280 F. App'x 620

CourtCourt of Appeals for the Ninth Circuit

DecidedMay 28, 2008

DocketNos. 04-73430, 04-76068

StatusPublished

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Lopez-Medina v. Mukasey, 280 F. App'x 620 (9th Cir. 2008).

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Opinion

MEMORANDUM

**

In these consolidated petitions, Roberto Lopez-Medina, a native and citizen of Mexico, seeks review of the Board of Immigration Appeals’ (“BIA”) orders dismissing his appeal from an immigration judge’s (“IJ”) decision denying his applications for adjustment of status and cancellation of removal (No. 04-73430), and denying his motion to reopen and reconsider (No. 04-76068). We have jurisdiction under 8 U.S.C. § 1252. We grant the petition for review in No. 04-73430, and we dismiss as moot the petition for review in No. 04-76068.

Lopez-Medina contends that the IJ violated his due process rights by discounting his attorney’s objection to the August 2, 1999 Form 1-213 record of deportable/inadmissible alien, and by admitting it into evidence. Although Lopez-Medina raised these claims in his Notice of Appeal to the BIA, the BIA failed to address them. 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 further proceedings. See id.

The IJ denied Lopez-Medina’s application for cancellation of removal on both reviewable and unreviewable grounds, and the BIA affirmed without opinion. Because it is impossible to discern whether the BIA affirmed the IJ on a ground over which we have jurisdiction, we also remand for clarification on this issue if necessary. See Lanza v. Ashcroft, 389 F.3d 917, 919-20 (9th Cir.2004).

In light of our decision in No. 04-73430, we dismiss as moot Lopez-Medina’s pett[622]*622tion for review of the BIA’s order denying his motion to reopen and reconsider.

No. 04-73430: PETITION FOR REVIEW GRANTED; REMANDED.

No. 04-76068: PETITION FOR REVIEW DISMISSED.

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

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MEMORANDUM

**

In these consolidated petitions, Roberto Lopez-Medina, a native and citizen of Mexico, seeks review of the Board of Immigration Appeals’ (“BIA”) orders dismissing his appeal from an immigration judge’s (“IJ”) decision denying his applications for adjustment of status and cancellation of removal (No. 04-73430), and denying his motion to reopen and reconsider (No. 04-76068). We have jurisdiction under 8 U.S.C. § 1252. We grant the petition for review in No. 04-73430, and we dismiss as moot the petition for review in No. 04-76068.

Lopez-Medina contends that the IJ violated his due process rights by discounting his attorney’s objection to the August 2, 1999 Form 1-213 record of deportable/inadmissible alien, and by admitting it into evidence. Although Lopez-Medina raised these claims in his Notice of Appeal to the BIA, the BIA failed to address them. 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 further proceedings. See id.

The IJ denied Lopez-Medina’s application for cancellation of removal on both reviewable and unreviewable grounds, and the BIA affirmed without opinion. Because it is impossible to discern whether the BIA affirmed the IJ on a ground over which we have jurisdiction, we also remand for clarification on this issue if necessary. See Lanza v. Ashcroft, 389 F.3d 917, 919-20 (9th Cir.2004).

In light of our decision in No. 04-73430, we dismiss as moot Lopez-Medina’s pett[622]*622tion for review of the BIA’s order denying his motion to reopen and reconsider.

No. 04-73430: PETITION FOR REVIEW GRANTED; REMANDED.

No. 04-76068: PETITION FOR REVIEW DISMISSED.

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

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