Pena-Rodriguez v. Keisler , 249 F. App'x 685 ( 2007 )

MEMORANDUM ^***

Flor de Maria Pena-Rodriguez, a native and citizen of El Salvador, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order denying her motion to reconsider its order dismissing as untimely her appeal from an immigration judge’s (“IJ”) decision. We have jurisdiction under 8 U.S.C. § 1252. Reviewing for abuse of discretion, Oh v. Gonzales, 406 F.3d 611, 612 (9th Cir.2005), we grant in part and dismiss in part the petition for review, and remand.

In denying Pena-Rodriguez’s motion to reconsider, the BIA incorrectly stated that it had no authority to extend the filing deadline for Pena-Rodriguez’s appeal. See id. at 613. In light of this error, we cannot be certain that the BIA examined the facts of Pena-Rodriguez’s case to determine whether she established “rare circumstances” sufficient to excuse the late filing. See id. We therefore remand to allow the BIA to exercise its discretion as to whether to accept Pena-Rodriguez’s late-arriving notice of appeal. See id. at 614.

PETITION FOR REVIEW GRANTED; REMANDED.

*** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.