Rivas Estrada v. Holder , 356 F. App'x 81 ( 2009 )

FILED
NOT FOR PUBLICATION DEC 07 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ROLANDO ABILIO RIVAS ESTRADA, No. 05-71001
Petitioner, Agency No. A070-915-782
v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 17, 2009 **
Before: ALARCÓN, TROTT, and TASHIMA, Circuit Judges.
Rolando Abilio Rivas Estrada, a native and citizen of Guatemala, petitions
for review of the Board of Immigration Appeals’ order summarily affirming an
immigration judge’s (“IJ”) order denying his applications for adjustment of status
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
IH/Research
and voluntary departure. We have jurisdiction under 8 U.S.C. § 1252. We review
de novo questions of law. Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1145
(9th Cir. 2002). We grant the petition for review and remand for further
proceedings.
The IJ denied Rivas Estrada’s request for relief under the Convention
Against Torture (“CAT”) on the mistaken assumption that his application had been
previously considered and denied in a prior proceeding. We reject the
government’s contention that Rivas Estrada failed to exhaust this issue. See
Alvarez Figueroa v. Mukasey, 543 F.3d 487, 493 (9th Cir. 2008). We accordingly
remand to the agency to consider Rivas Estrada’s eligibility for relief under the
CAT in the first instance. See INS v. Ventura, 537 U.S. 12, 16 (2002) (per curiam).
On remand, the agency should also consider whether Rivas Estrada is
eligible for derivative adjustment of status in light of our recent decisions in
Landin-Molina v. Holder, 580 F.3d 913 (9th Cir. 2009) and Morales-Garcia v.
Holder, 567 F.3d 1058 (9th Cir. 2009).
In light of our disposition, we need not address Rivas Estrada’s remaining
contentions.
The government shall bear the costs for this petition for review.
PETITION FOR REVIEW GRANTED; REMANDED.
IH/Research 2 05-71001