Luviano v. Mukasey

MEMORANDUM ^**

Francisco Guillen Luviano and family, natives and citizens of Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”) order dismissing their appeal from an immigration judge’s (“IJ”) removal order. We have jurisdiction under 8 U.S.C. § 1252. We grant the petition for review and remand for further proceedings.

Petitioners’ Notice of Appeal to the. BIA contended, citing Matter of Fefe, 20 I. & N. Dec. 116 (BIA 1989), that the IJ “improperly proceeded in that he did not allow or take any testimony on the asylum or withholding application.” See Kaganovich v. Gonzales, 470 F.3d 894, 897 (9th Cir. 2006) (raising a claim in the notice of appeal suffices for purposes of exhaustion). The BIA’s decision, however, does not address this contention. We therefore remand for the BIA to decide the issue in the first instance. See Barroso v. Gonzales, 429 F.3d 1195, 1208-09 (9th Cir. 2005) (remanding after stating that the BIA is “not free to ignore arguments raised by a petitioner” (internal quotation marks and citation omitted)); see also INS v. Ventura, 537 U.S. 12, 17-18, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam).

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.