Vargas-Sanchez v. Gonzales

121 F. App'x 279

Opinion

MEMORANDUM

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Marcelino Vargas-Sanchez, his wife, and their three children, all natives and citizens of Mexico, petition for review of the decision of the Board of Immigration Appeals (“BIA”) summarily affirming an immigration judge’s (“IJ”) decision denying their request for cancellation of removal on the basis that they abandoned their application by failing to timely file it. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review de novo. See Martinez-Garcia v. Ashcroft, 366 F.3d 732, 733 (9th Cir. 2004). We grant the petition for review, and remand to the BIA to address petitioners’ ineffective assistance of counsel claim.

The IJ properly deemed petitioners’ request for cancellation of removal abandoned because he did not file a cancellation application by the deadline set by the IJ. See 8 C.F.R. § 3.31(c); Castillo-Perez v. INS, 212 F.3d 518, 522 (9th Cir.2000).

The BIA, however, did not address petitioners’ claim that ineffective assistance of counsel prevented them from timely filing an application. We remand for the agency to address this claim in the first instance. See Silva-Calderon v. Ashcroft, 371 F.3d 1135, 1137 (9th Cir.2004).

PETITION FOR REVIEW GRANTED and 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.