Martinez v. Holder , 474 F. App'x 720 ( 2012 )

FILED
NOT FOR PUBLICATION JUL 25 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MAX EDDY MARTINEZ, No. 07-73875
Petitioner, Agency No. A038-855-435
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 17, 2012 **
Before: SCHROEDER, THOMAS, and SILVERMAN, Circuit Judges.
Max Eddy Martinez, a native and citizen of El Salvador, petitions for review
of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s (“IJ”) removal order. We have jurisdiction under 8 U.S.C.
§ 1252. We review de novo questions of law, Camins v. Gonzales, 500 F.3d 872,
*
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).
876 (9th Cir. 2007), and we grant the petition for review and remand for further
proceedings.
In concluding that Martinez was seeking admission to the United States, and
was therefore subject to charges of inadmissibility, the agency did not have the
benefit of Vartelas v. Holder, 132 S. Ct. 1479, 1483-84, 1490-92 (2012), in which
the Supreme Court held that 8 U.S.C. § 1101(a)(13)(C)(v) does not apply to
criminal convictions that predate the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Pub. L. No. 104-208 (“IIRIRA”). Additionally, in
concluding that Martinez was ineligible for a waiver of inadmissibility under
former § 212(c) of the Immigration and Nationality Act, the agency did not have
the benefit of Peng v. Holder, 673 F.3d 1248, 1256-57 (9th Cir. 2012), where we
held that § 212(c) relief remains available to certain aliens who proceeded to trial
prior to IIRIRA.
In light of this intervening caselaw, we remand to the BIA with instructions
to remand to the IJ to conduct further proceedings regarding Martinez’s
inadmissibility and, if necessary, regarding his eligibility for § 212(c) relief.
PETITION FOR REVIEW GRANTED; REMANDED.
2 07-73875