Torres-Rosales v. Gonzales

143 F. App'x 884

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 19, 2005
• Docket: No. 04-71671
• Status: Published

Opinion

MEMORANDUM

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Janet Torres-Rosales, a native and citizen of Honduras, petitions for review of the Board of Immigration Appeals’ (“BIA”) summary affirmance of an Immigration Judge’s (“U”) denial of her applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We grant the petition and remand.

Petitioner fails to raise claims regarding the denial of asylum, withholding of removal, and CAT relief in her opening brief, and therefore waives those claims. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.1996).

Petitioner contends that the BIA abused its discretion by summarily affirming the IJ’s decision and not addressing her motion to remand based on Matter of R-A-, 22 I. & N. Dec. 906 (A.G.2001, BIA 1999), and the publication of new asylum regulations. Petitioner is correct that the BIA did not address her motion, which was contained in her BIA brief. Because the BIA abuses its discretion if it fails to “indicate with specificity that it heard and considered petitioner’s claims,” we remand to the BIA to consider petitioner’s motion to remand. See Maravilla Maravilla v. Ashcroft, 381 F.3d 855, 858 (9th Cir.2004).

Petitioner’s contention regarding Castillo-Villagra v. INS, 972 F.2d 1017 (9th Cir.1992) is misplaced because here the BIA did not take administrative notice of any fact.

PETITION FOR REVIEW GRANTED; REMANDED.

Judge Rymer dissents.

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.