Vargas v. Holder ( 2010 )

FILED
NOT FOR PUBLICATION MAR 25 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
GUSTAVO VARGAS; GABRIELA No. 07-73485
MADRICAL ESTRELLA, a.k.a. Gabriela
Madrigal Estrella; MAYRA LEZETH Agency Nos. A078-243-982
ELIAS, A079-535-460
A079-535-461
Petitioners,
v. MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 16, 2010 **
Before: SCHROEDER, PREGERSON, and RAWLINSON, Circuit Judges.
Gustavo Vargas, Gabriela Madrical Estrella, and Mayra Lezeth Elias,
husband, wife and daughter, and natives and citizens of Mexico, petition for review
*
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).
AP/Research
of the Board of Immigration Appeals’ (“BIA”) order dismissing their appeal from
an immigration judge’s removal order and denying their motion to remand. We
have jurisdiction under 8 U.S.C. § 1252. We deny in part and grant in part the
petition for review and remand for further proceedings.
Vargas and Lezeth Elias have failed to challenge the agency’s denials of
their applications for cancellation of removal and thus, have waived those issues.
See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir. 1996) (issues which
are not specifically raised and argued in a party’s opening brief are waived).
The agency determined that Madrical Estrella’s failure to submit her
fingerprints was sufficient reason to deny her application for cancellation of
removal. The agency, however, did not have the benefit of our intervening
decision in Cui v. Mukasey, 538 F.3d 1289 (9th Cir. 2008), which held that
refusing to continue proceedings for fingerprint processing prior to April 2005 may
be an abuse of discretion. We therefore remand for the agency to reconsider its
denial of Madrical Estrella’s application. See id. at 1292-95; see also Karapetyan
v. Mukasey, 543 F.3d 1118, 1129-32 (9th Cir. 2008).
In light of our disposition, we do not reach Madrical Estrella’s challenge to
the BIA’s denial of her motion to remand.
AP/Research 2 07-73485
Each party shall bear its own costs for this petition for review.
PETITION FOR REVIEW DENIED in part; GRANTED in part;
REMANDED.
AP/Research 3 07-73485