Martinez-De Arroyo v. Ashcroft

114 F. App'x 336

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 1, 2004
• Docket: No. 03-71209; Agency No. A76-659-608
• Status: Published

Opinion

MEMORANDUM

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Petitioner Rosario Martinez-De Arroyo seeks review of the decision of the Board of Immigration Appeals (“BIA”) denying her motion to terminate removal proceedings and her application for cancellation of removal. We dismiss the petition in part, grant it in part, and remand.

We lack jurisdiction to consider Martinez-De Arroyo’s motion to terminate removal proceedings because her claim for estoppel “aris[es] from the decision ... by the Attorney General to commence proceedings.” 8 U.S.C. § 1252(g); see also Martinez-Garcia v. Ashcroft, 366 F.3d 732, 735 (9th Cir.2004) (“It is well settled that the decision to place an alien in immigration proceedings, and when to do it ... is akin to prosecutorial discretion.”). We accordingly dismiss this portion of the petition.

As to Martinez-De Arroyo’s application for cancellation of removal, however, we grant the petition for review and remand to the BIA for further consideration. While we would ordinarily defer to the BIA’s interpretation of the applicable statutory provisions, here the BIA made no reference to potentially relevant precedent. Specifically, the BIA failed to address Beltran-Tirado v. INS, 213 F.3d (9th Cir.2000), a decision issued in the interim between Martinez-De Arroyo’s hearing before the IJ and the summary disposition of her appeal. We thus remand to the BIA to consider Beltran-Tirado’s application to the facts of this case. See INS v. Orlando Ventura, 537 U.S. 12, 16-17, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002); cf. Hagi-Salad v. Ashcroft, 359 F.3d 1044, 1049 (8th Cir.2004) (concluding that where the BIA had “overlooked or disregarded” a relevant regulation, the “proper disposition is to remand”).

PETITION DISMISSED IN PART AND GRANTED IN PART; REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.