Ghaleb Sarama v. Eric H. Holder Jr. ( 2009 )

FILED
NOT FOR PUBLICATION DEC 29 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
GHALEB SARAMA, No. 08-73724
Petitioner, Agency No. A075-691-693
v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 15, 2009 **
Before: GOODWIN, WALLACE, and FISHER, Circuit Judges.
Ghaleb Sarama, a native of Jordan and citizen of Israel, petitions for review
of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s (“IJ”) decision denying his application for asylum,
*
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).
DL/Research
withholding of removal, and protection under the Convention Against Torture. We
have jurisdiction under 8 U.S.C. § 1252. We grant the petition for review and
remand.
The BIA determined that Sarama’s failure to submit fingerprints was a
sufficient reason to deny his application for relief. The BIA, however, did not have
the benefit of our intervening decision in Cui v. Mukasey, 538 F.3d 1289 (9th Cir.
2008) (holding IJ’s denial of petitioner’s request for a continuance constituted an
abuse of discretion where law governing fingerprint requirement was unclear and
uncertain, and IJ did not warn petitioner that failure to submit new fingerprints in
advance of merits hearing could result in pretermission of her claims). The
government contends this case should be remanded for the BIA to reconsider its
dismissal of Sarama’s appeal in light of Cui, and we agree. See id. at 1292-95; see
also Karapetyan v. Mukasey, 543 F.3d 1118, 1129-32 (9th Cir. 2008) (reaching
same result as in Cui).
We also grant the petition for review and remand as to Sarama’s claim that
the IJ violated his due process rights by failing to provide adequate notice
regarding the fingerprint requirement. Sarama raised this contention to the BIA,
but the BIA did not address it, so we remand for the BIA to do so in the first
instance. See Montes-Lopez v. Gonzales, 486 F.3d 1163, 1165 (9th Cir. 2007).
DL/Research 2 08-73724
Because the BIA did not rely upon the IJ’s finding that Sarama’s asylum
claim was time-barred as a ground for denying relief, the BIA properly declined to
address Sarama’s due process claim regarding the IJ’s time-bar finding.
PETITION FOR REVIEW GRANTED; REMANDED.
DL/Research 3 08-73724