Garcia Gomez v. Gonzeles ( 2007 )

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.