Makaj v. Gonzales

175 F. App'x 938

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 14, 2006
• Docket: No. 05-73244
• Status: Published

Opinion

MEMORANDUM

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We reject petitioner’s due process claim. The immigration judge’s (“IJ”) conduct was fully consistent with its obligation to develop the record under 8 U.S.C. § 1229a(b)(l), and did not rise to the level of a due process violation. Compare Melkonian v. Ashcroft, 320 F.3d 1061, 1072 (9th Cir.2003); and Perez-Lastor v. INS, 208 F.3d 773, 782 n. 9 (9th Cir.2000); with Reyes-Melendez v. INS, 342 F.3d 1001 (9th Cir.2003).

Nonetheless, the Board of Immigration Appeals (“BIA”) abused its discretion by failing to consider petitioner’s Convention Against Torture (“CAT”) claim, which was properly raised before the BIA in both Makaj’s notice of appeal and brief. See Zhang v. Ashcroft, 388 F.3d 713, 721 (9th Cir.2004); Agyeman v. INS, 296 F.3d 871, 878 (9th Cir.2002); Ladha v. INS, 215 F.3d 889, 903 (9th Cir.2000). We therefore grant the petition and remand to the BIA for consideration. See INS v. Ventura, 537 U.S. 12, 16-17, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002).

PETITION GRANTED; REMANDED TO BIA.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.