FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAMIRO CASARES-CASTELLON, a.k.a.
Ramiro Casares Castellon,
No. 05-76788
Petitioner,
v. Agency No.
A092-840-043
ERIC H. HOLDER JR., Attorney
OPINION
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
April 14, 2010—San Francisco, California
Filed May 4, 2010
Before: Andrew J. Kleinfeld and Sidney R. Thomas,
Circuit Judges, and William Stafford,
Senior* District Judge.
Per Curiam Opinion
*The Honorable William Stafford, United States District Judge for the
Northern District of Florida, sitting by designation.
6627
CASARES-CASTELLON v. HOLDER 6629
COUNSEL
James Todd Bennett, El Cerrito, California, for the petitioner.
Karen L. Melmik (argued) and Jennifer Lightbody (brief),
Office of Immigration Litigation, U.S. Department of Justice,
Washington, D.C., for the respondent.
OPINION
PER CURIAM:
Ramiro Casares-Castellon (“Casares”) petitions for review
of the Board of Immigration Appeals’ (“BIA”) order affirm-
ing the Immigration Judge’s (“IJ”) decision deeming his
timely-filed application for relief under former Immigration
and Nationality Act (“INA”) § 212(c), 8 U.S.C. § 1182(c)
(repealed 1996), abandoned for failure to submit documents
supporting his request for relief within the time prescribed.
Casares also petitions for review of the IJ’s decision deeming
his application for cancellation of removal pretermitted. We
have jurisdiction pursuant to 8 U.S.C. § 1252. We grant the
petition for review and remand for further proceedings.
I
Casares contends that the BIA misinterpreted 8 C.F.R.
§ 1003.31(c) in its non-precedential decision affirming the
IJ’s decision to deem his application for former section 212(c)
relief abandoned for failure to timely submit court-requested
documentation. We agree.
[1] To determine whether an agency’s interpretation of its
own regulation is accorded deference, this court conducts a
two-step inquiry. First, deference is warranted only when the
language of the regulation is ambiguous; otherwise, “[t]o
6630 CASARES-CASTELLON v. HOLDER
defer to the agency’s position would be to permit the agency,
under the guise of interpreting a regulation, to create de facto
a new regulation.” Christensen v. Harris County, 529 U.S.
576, 588 (2000) (emphasis in original); Bassiri v. Xerox
Corp., 463 F.3d 927, 931 (9th Cir. 2006). Second, if the regu-
lation is ambiguous, then the agency’s interpretation of it is
controlling unless plainly erroneous or inconsistent with the
regulation. See Auer v. Robbins, 519 U.S. 452, 461 (1997);
see also Bassiri, 463 F.3d at 931.
8 C.F.R. § 1003.31(c) provides that:
The Immigration Judge may set and extend time lim-
its for the filing of applications and related docu-
ments and responses thereto, if any. If an application
or document is not filed within the time set by the
Immigration Judge, the opportunity to file that appli-
cation or document shall be deemed waived.
We need not decide whether the BIA’s interpretation of 8
C.F.R. § 1003.31(c) is “plainly erroneous,” because we con-
clude that the regulation’s language plainly limits any waiver
to the actual application or document not timely filed. Thus,
where Casares’ application was itself timely filed, the BIA
erred in holding that Casares’ failure to timely submit subse-
quent documentation allowed the IJ to deem his entire timely-
filed, statutorily authorized application abandoned. We need
not decide the scope of the power of an IJ to pretermit appli-
cations in other contexts or for other reasons. The IJ and the
BIA relied solely on the regulation at issue. The IJ’s authority
under that regulation is limited to the terms of the regulation,
which do not authorize an IJ to deem an entire timely-filed
application abandoned for failure to file a supplemental docu-
ment within a specified time. Under the regulation, the IJ is
authorized only to deem the opportunity to file the specific
documents subject to the order as waived.
[2] Neither the BIA nor the IJ reached the merits of
Casares’ application. Therefore, we must remand to the
CASARES-CASTELLON v. HOLDER 6631
agency for a merits determination. We do not prejudge the
results of that inquiry.
II
The BIA failed to address Casares’ contention that the IJ
erred in deeming his application for cancellation of removal
under INA § 240A, 8 U.S.C. § 1229b, pretermitted. The BIA
is “not free to ignore arguments raised by a [party].” Sagay-
dak v. Gonzales, 405 F.3d 1035, 1040 (9th Cir. 2005). We
remand to the BIA to decide this issue in the first instance.
We need not, and do not, reach the remaining issues raised
by the parties.
PETITION GRANTED; REMANDED.