Juan Gomez-Garcia v. Eric Holder, Jr. , 549 F. App'x 688 ( 2013 )

FILED
NOT FOR PUBLICATION DEC 12 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN GOMEZ-GARCIA, No. 11-70016
Petitioner, Agency No. A091-591-412
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 19, 2013**
Before: CANBY, TROTT, and THOMAS, Circuit Judges.
Juan Gomez-Garcia, a native and citizen of Mexico, petitions for review of
the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s removal order. We have jurisdiction under 8 U.S.C. § 1252.
We review de novo questions of law. Sandoval-Luna v. Mukasey, 526 F.3d 1243,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
1246 (9th Cir. 2008) (per curiam). We grant in part and deny in part the petition
for review and remand.
In concluding that Gomez-Garcia was inadmissible under 8 U.S.C.
§ 1182(a)(9)(C)(i)(II), the BIA did not have the benefit of Duran Gonzales v. DHS,
712 F.3d 1271 (9th Cir. 2013) and Carrillo de Palacios v. Holder, 708 F.3d 1066
(9th Cir. 2013), in which the court set out the retroactivity test to be applied in such
cases. See Duran Gonzales, 712 F.3d at 1275-78. We remand to the BIA to apply
the retroactivity test in the first instance. See id. at 1278 (remanding for
retroactivity analysis given the fact that the record has not been fully developed).
Gomez-Garcia’s motion to hold his case in abeyance pending a decision in
Duran Gonzales v. DHS, 659 F.3d 930 (9th Cir. 2011) is denied as moot. The
parties shall bear their own costs for this petition for review.
PETITION FOR REVIEW GRANTED in part; DENIED in part; and
REMANDED.
2 11-70016