Maria Aguirre Jimenez v. Eric H. Holder Jr. , 443 F. App'x 271 ( 2011 )

FILED
NOT FOR PUBLICATION JUL 15 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MARIA FRANCISCA AGUIRRE No. 08-71118
JIMENEZ,
Agency No. A097-881-314
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 12, 2011 **
Before: SCHROEDER, ALARCÓN, and LEAVY, Circuit Judges.
Maria Francisca Aguirre Jimenez, a native and citizen of Guatemala,
petitions for review from the Board of Immigration Appeals’ (“BIA”) order
dismissing her appeal from an immigration judge’s (“IJ”) decision denying her
application for asylum, withholding of removal, relief under the Convention
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Against Torture (“CAT”), and cancellation of removal. Our jurisdiction is
governed by 8 U.S.C. § 1252. We review de novo questions of law and review for
substantial evidence factual findings. Husyev v. Mukasey, 528 F.3d 1172, 1177
(9th Cir. 2008). We dismiss in part, grant in part, and remand the petition for
review.
We lack jurisdiction to review the agency’s discretionary determination that
Aguirre Jimenez failed to show exceptional and extremely unusual hardship to her
United States citizen son. See 8 U.S.C. § 1252(a)(2)(B); Martinez-Rosas v.
Gonzales, 424 F.3d 926, 930 (9th Cir. 2005).
The BIA failed to address Aguirre Jimenez’s contention on appeal that
extraordinary circumstances excused the untimely filing of her asylum application.
See Moreno-Morante v. Gonzales, 490 F.3d 1172, 1173 n.1 (9th Cir. 2007)
(general argument in brief to BIA is sufficient to put BIA on notice and allow BIA
to pass on the issue). Accordingly, we remand Aguirre Jimenez’s asylum claim to
the BIA to address the issue in the first instance. See INS v. Ventura, 537 U.S. 12,
16-18 (2002) (per curiam).
In addition, the IJ did not provide a reasoned explanation for its alternative
denial of Aguirre Jimenez’s asylum claim on the merits, and the BIA did not cure
this error in its conclusory determination regarding withholding of removal. See
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Avetova-Elisseva v. INS, 213 F.3d 1192, 1197 (9th Cir. 2007) (due to “the lack of
analysis that the BIA opinion devoted to the issue at hand,” looking “to the IJ’s
oral decision as a guide to what lay behind the IJ’s conclusion”). In particular, the
BIA and the IJ did not address Aguirre Jimenez’s claims for asylum and
withholding of removal on account of her race, as a member of the native Kanjobal
tribe, and her membership in a particular social group, as an indigenous
Guatemalan woman. In light of this, and because the agency did not have the
benefit of our decision in Perdomo v. Holder, 611 F.3d 662, 669 (9th Cir. 2010),
we remand to the BIA for consideration of these issues in the first instance. See
Ventura, 537 U.S. at 16-18.
Finally, we also grant the petition for review as to Aguirre-Jimenez’s CAT
claim and remand for the agency to reconsider the claim in light of all the evidence
in the record, including the country reports. See Aguilar-Ramos v. Holder, 594
F.3d 701, 705 & n.6 (9th Cir. 2010); Al-Saher v. INS, 268 F.3d 1143, 1146-48 (9th
Cir. 2001).
Each party shall bear its own costs for this petition for review.
PETITION FOR REVIEW DISMISSED in part; GRANTED in part;
REMANDED.
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