Owen Fagan v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION MAY 28 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
OWEN AUGUSTUS FAGAN, No. 12-73959
Petitioner, Agency No. A023-723-116
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 13, 2014**
Before: CLIFTON, BEA, and WATFORD, Circuit Judges.
Owen Augustus Fagan, a native and citizen of Jamaica, petitions for review
of an order of the Board of Immigration Appeals (“BIA”) affirming a decision of
an immigration judge (“IJ”) denying his application for cancellation of removal
and his request for a continuance. We have jurisdiction under 8 U.S.C. § 1252.
*
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).
Reviewing de novo questions of law, Doissaint v. Mukasey, 538 F.3d 1167, 1170
(9th Cir. 2008), we grant the petition for review and remand the matter to the BIA
for further proceedings consistent with our disposition.
The agency erred by failing to consider Fagan’s properly raised and briefed
request for a waiver of inadmissibility pursuant to former section 212(c) of the
Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1996). See id. (“IJs and the
BIA are not free to ignore arguments raised by a petitioner.” (citation omitted)).
Accordingly, we remand the matter to the agency for it to address this issue in the
first instance. See Casares-Castellon v. Holder, 603 F.3d 1111, 1113 (9th Cir.
2010) (per curiam) (remanding a case to the agency for a merits determination in
the first instance).
PETITION FOR REVIEW GRANTED; REMANDED.
2 12-73959