Opinion
The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Michael S. Cabrera, Law Offices of Michael S. Cabrera, Huntington Park, CA, for Petitioners.
Ronald E. Lefevre, Chief Legal Officer, Office of the District Counsel Department of Homeland Security, San Francisco, CA; and Bryan S. Beier, DOJ--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.
Before FERNANDEZ, GRABER, and GOULD, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
Marcelino Vargas-Sanchez, his wife, and their three children, all natives and citizens of Mexico, petition for review of the decision of the Board of Immigration Appeals ("BIA") summarily affirming an immigration judge's ("IJ") decision denying their request for cancellation of removal on the basis that they abandoned their application by failing to timely file it. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review de novo. See Martinez-Garcia v. Ashcroft, 366 F.3d 732, 733 (9th Cir.2004). We grant the petition for review, and remand to the BIA to address petitioners' ineffective assistance of counsel claim.
The IJ properly deemed petitioners' request for cancellation of removal abandoned because he did not file a cancellation application by the deadline set by the IJ. See 8 C.F.R. § 3.31(c); Castillo-Perez v. INS, 212 F.3d 518, 522 (9th Cir.2000).
The BIA, however, did not address petitioners' claim that ineffective assistance of counsel prevented them from timely filing an application. We remand for the agency to address this claim in the first instance. See Silva-Calderon v. Ashcroft, 371 F.3d 1135, 1137 (9th Cir.2004).
PETITION FOR REVIEW GRANTED and REMANDED.