Opinion
No. 04-74660.
The panel unanimously Finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed October 24, 2008.
Charles E. Nichol, Esq., Law Office of Charles E. Nichol, San Francisco, CA, for Petitioners.
CAC-District Counsel, Esq., Office of the District Counsel, Los Angeles, CA, Ronald E. LeFevre, Chief Counsel, Office of the District Counsel, San Francisco, CA, Kurt B. Larson, Stacy S. Paddack, U.S. Department of Justice, Civil Div./Office of Immigration Lit, Washington, DC, for Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency Nos. A079-268-683, A079-268-684, A072-i03-844.
Before: LEAVY, RYMER, and THOMAS, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Francisco Guillen Luviano and family, natives and citizens of Mexico, petition for review of the Board of Immigration Appeals' ("BIA") order dismissing their appeal from an immigration judge's ("IJ") removal order. We have jurisdiction under 8 U.S.C. § 1252. We grant the petition for review and remand for further proceedings.
Petitioners' Notice of Appeal to the BIA contended, citing Matter of Fefe, 20 I. N. Dec. 116 (BIA 1989), that the IJ "improperly proceeded in that he did not allow or take any testimony on the asylum or withholding application." See Kaganovich v. Gonzales, 470 F.3d 894, 897 (9th Cir. 2006) (raising a claim in the notice of appeal suffices for purposes of exhaustion). The BIA's decision, however, does not address this contention. We therefore remand for the BIA to decide the issue in the first instance. See Barroso v. Gonzales, 429 F.3d 1195, 1208-09 (9th Cir. 2005) (remanding after stating that the BIA is "not free to ignore arguments raised by a petitioner" (internal quotation marks and citation omitted)); see also INS v. Ventura, 537 U.S. 12, 17-18, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam).