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 2020-08

Francisco Ibarguen v. William Barr ( 2020 )


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  •                               NOT FOR PUBLICATION                         FILED
UNITED STATES COURT OF APPEALS                        AUG 13 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANCISCO GUTIERREZ IBARGUEN,                   Nos. 19-72099
19-72961
Petitioner,
Agency No. A215-565-405
v.
WILLIAM P. BARR, Attorney General,              MEMORANDUM*
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 11, 2020**
Before:      TROTT, SILVERMAN, and N.R. SMITH, Circuit Judges.
In these consolidated petitions for review, Francisco Gutierrez Ibarguen, a
native and citizen of Mexico, petitions for review of the Board of Immigration
Appeals’ (“BIA”) order denying his motion to remand and dismissing his appeal
from an immigration judge’s (“IJ”) decision denying his application for
cancellation of removal. Our jurisdiction is governed by
    8 U.S.C. § 1252
    . In No.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
19-72961, we dismiss the petition for review. In No. 19-72099, we dismiss in part
and grant in part the petition for review, and remand.
We lack jurisdiction to review petition No. 19-72961, where it was filed
more than 30 days after the BIA’s final order of removal. See
    8 U.S.C. § 1252
    (b)(1); Sheviakov v. INS,
    237 F.3d 1144
    , 1146 (9th Cir. 2001).
We lack jurisdiction to review the BIA’s discretionary hardship
determination and its decision that hardship evidence submitted with Gutierrez
Ibarguen’s appeals brief on August 26, 2019, did not merit a remand. See
Fernandez v. Gonzales,
    439 F.3d 592
    , 598-600 (9th Cir. 2006). Gutierrez
Ibarguen’s contention that the IJ did not give him a sufficient opportunity to submit
evidence is unexhausted. Tijani v. Holder,
    628 F.3d 1071
    , 1080 (9th Cir. 2010)
(no jurisdiction to review legal claims not raised before the BIA).
It appears the BIA overlooked Gutierrez Ibarguen’s motion to remand, filed
on October 7, 2019, and the attached evidence, including a court order vacating a
prior conviction and letters of support from his lawful permanent resident father
and U.S. citizen daughter. See Narayan v. Ashcroft,
    384 F.3d 1065
    , 1068 (9th Cir.
2004) (“the BIA must address and rule upon remand motions”). Although the
BIA’s order addresses remand, this appears to refer to evidence submitted on
August 26, 2019. We take notice of the BIA’s April 30, 2020, order denying a
subsequent motion, but that order does not clarify whether the BIA ever considered
2                                   19-72099
the October 7, 2019, motion and evidence. See Dent v. Holder,
    627 F.3d 365
    , 371
(9th Cir. 2010) (taking judicial notice of agency records). We therefore remand for
the BIA to clarify whether it considered the October 7, 2019, motion and
accompanying evidence, and if necessary, to consider them in the first instance.
The government must bear the costs for this petition for review.
No. 19-72099: PETITION FOR REVIEW DISMISSED in part;
GRANTED in part; REMANDED.
No. 19-72961: PETITION FOR REVIEW DISMISSED.
3                                  19-72099