Luna v. Gonzales

MEMORANDUM ^**

Raul Carrillo Luna, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reconsider its prior order dismissing as untimely his appeal from an immigration judge’s (“IJ”) decision denying his application for cancellation of removal. We have jurisdiction it is under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reconsider, Oh v. Gonzales, 406 F.3d 611, 612 (9th Cir.2005), and we review de novo questions of law in immigration proceedings, Vasquez-Zavala v. Ashcroft, 324 F.3d 1105, 1107 (9th Cir.2003). We grant the petition for review, and remand for further proceedings.

Carrillo Luna was pro se and made an understandable mistake when he mailed the notice of appeal to the address in Los Angeles where he had previously filed documents, rather than to the BIA in Virginia. The BIA abused its discretion in denying Carrillo Luna’s motion to reconsider because the BIA incorrectly stated that it had no authority to extend the filing deadline for Carrillo Luna’s notice of appeal. See Oh, 406 F.3d at 613-14. In light of this error, we cannot be certain that the BIA examined the facts of Carrillo Luna’s case to determine whether he established “rare circumstances” sufficient to excuse the late filing. See id. at 613. We therefore remand to allow the BIA to exercise its discretion as to whether to accept Carrillo Luna’s late-arriving notice of appeal. See id. at 614.

Because we hold that the BIA abused its discretion, we do not reach Carrillo Luna’s due process argument.

PETITION FOR REVIEW GRANTED; REMANDED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.