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Garcia Gomez v. Gonzeles, 06-70941 (2007)

Court: Court of Appeals for the Ninth Circuit Number: 06-70941 Visitors: 12
Filed: Aug. 20, 2007
Latest Update: Mar. 02, 2020
Summary: FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT FELIPE GARCIA GOMEZ; CIRA NILA HERRERA, No. 06-70941 Petitioner, Agency Nos. v. A95-443-614 ALBERTO R. GONZALES, Attorney A95-443-615 General, OPINION Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted August 13, 2007* San Francisco, California Filed August 21, 2007 Before: Diarmuid F. O’Scannlain, Michael Daly Hawkins, and Kim McLane Wardlaw, Circuit Judges. Per Curiam Opinion *T
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                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

FELIPE GARCIA GOMEZ; CIRA NILA            
HERRERA,                                          No. 06-70941
                       Petitioner,                Agency Nos.
               v.                                A95-443-614
ALBERTO R. GONZALES, Attorney                     A95-443-615
General,                                           OPINION
                     Respondent.
                                          
          On Petition for Review of an Order of the
               Board of Immigration Appeals

                  Submitted August 13, 2007*
                   San Francisco, California

                      Filed August 21, 2007

 Before: Diarmuid F. O’Scannlain, Michael Daly Hawkins,
        and Kim McLane Wardlaw, Circuit Judges.

                       Per Curiam Opinion




  *This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).

                                10195
                       GOMEZ v. GONZALES                   10197
                          COUNSEL

Susan E. Hill, Hill, Piibe & Villegas, Los Angeles, California,
for the petitioners.

Peter D. Keisler, M. Jocelyn Lopez Wright, and Andrew B.
Insenga, Office of Immigration Litigation, Department of Jus-
tice, Washington, D.C., for the respondent.


                           OPINION

PER CURIAM:

   Felipe Garcia Gomez and Cira Nila-Herrera (“the Gar-
cias”), natives and citizens of Mexico, petition for review of
the Board of Immigration Appeals’ (“BIA”) denial of their
motion for leave to file a late brief and denial of their applica-
tion for cancellation of removal. We have jurisdiction pursu-
ant to 8 U.S.C. § 1252(a)(2)(D).

   The Garcias submitted supporting declarations explaining
that their brief was late due to the mail carrier’s failure to
deliver the notice of the briefing schedule to the correct
address. Denying the Garcias’ motion, the BIA conclusorily
reasoned: “We find the reason stated by the respondents
insufficient for us to accept the untimely brief in our exercise
of discretion.”

   [1] Although the BIA recognized its discretion to grant the
motion, see 8 C.F.R. § 1003.3b(b)(1) (“The [BIA], upon writ-
ten motion, may extend the period for filing a brief . . . for up
to 90 days for good cause shown.”)), its order did not offer
“some reasoned explanation” for denying the motion, Oh v.
Gonzales, 
406 F.3d 611
, 613 (9th Cir. 2005). The BIA’s order
is thus inadequate for us to perform any meaningful appellate
review. “Immigration judges, although given significant dis-
10198                  GOMEZ v. GONZALES
cretion, . . . must indicate how they . . . arrived at their conclu-
sion.” Sagaydak v. Gonzales, 
405 F.3d 1035
, 1040 (9th
Cir.2005) (internal quotations and brackets omitted)).

   [2] We agree with the approach taken by the Seventh Cir-
cuit addressing an identically worded BIA order, denying a
motion to accept a late-filed brief. See Gutierrez-Almazan v.
Gonzales, ___ F.3d ___, 
2007 WL 1774027
, at *2-3 (7th Cir.
Jun. 21, 2007). The Seventh Circuit held that the BIA’s
“sparse ruling was inadequate to enable [the court of appeals]
to perform any meaningful review,” explaining that the BIA’s
decision provided “no indication that it took account of . . .
[any] factors that might be relevant to the merits of the
motion.” 
Id. at *3.
We are similarly “unable to determine
from the BIA’s conclusory statement whether it abused its
discretion by refusing to accept [the Garcias’] late brief.” See
id. We therefore
remand the petition to the BIA.

   Because the BIA could reach a different conclusion on its
hardship determination if it considers the Garcias’ brief on
remand, we do not reach the Garcias’ other legal or constitu-
tional claims.

  REMANDED.

Source:  CourtListener

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