FILED
NOT FOR PUBLICATION AUG 9 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MOHAMED ASLAM MOHIDEEN, No. 08-73578
Petitioner, Agency No. A095-472-372
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 2, 2011 **
Before: LEAVY, IKUTA, and N.R. SMITH, Circuit Judges.
Mohamed Aslam Mohideen, a native and citizen of Sri Lanka, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order denying his claim that
the immigration judge (“IJ”) erred by failing to advise him to file his own
application for asylum, withholding of removal, and protection under the
*
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).
Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. §
1252. We review de novo questions of law. Wakkary v. Holder, 558 F.3d 1049,
1056 (9th Cir. 2009). We grant the petition for review, and we remand.
Mohideen, a derivative petitioner on his wife’s application for asylum,
withholding of removal, and CAT relief, contends that the IJ had a duty to advise
him of his right to file his own application for relief. In denying Mohideen’s
claim, the BIA cited to 8 C.F.R. § 240.11(a)(2). However, the applicable
regulation is 8 C.F.R. § 1240.11(c), which imposes on an IJ a duty to advise an
alien that he or she may apply for asylum or withholding of removal where the
alien has expressed a fear of persecution or harm. See 8 C.F.R. § 1240.11(c)(1).
Accordingly, we remand for the BIA to consider Mohideen’s claim under the
appropriate regulation in the first instance. See INS v. Ventura, 537 U.S. 12, 16-18
(2002) (per curiam).
In light of this disposition, we do not reach Mohideen’s due process claim.
PETITION FOR REVIEW GRANTED; REMANDED.
2 08-73578