NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 30 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ORACIO AGUILAR-GABINO, No. 17-71586
Petitioner, Agency No. A205-576-127
v.
MEMORANDUM*
MATTHEW G. WHITAKER, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 27, 2018**
Before: CANBY, TASHIMA, and FRIEDLAND, Circuit Judges.
Oracio Aguilar-Gabino, a native and citizen of Mexico, petitions pro se for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s (“IJ”) decision denying his application for
cancellation of removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
dismiss in part and grant in part the petition for review, and we remand.
We lack jurisdiction to consider Aguilar-Gabino’s unexhausted contention
that his attorney and the IJ failed to question him regarding his previous presence
in the United States. See Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010) (no
jurisdiction to review legal claims not presented in administrative proceedings
before the BIA).
The BIA did not have the benefit of Pereira v. Sessions, 138 S. Ct. 2105
(2018), which held that a notice to appear that does not specify the time and date of
the hearing does not trigger the stop-time rule, when it denied cancellation of
removal. Thus, we remand for further proceedings consistent with that disposition.
Each party shall bear its own costs for this petition for review.
PETITION FOR REVIEW DISMISSED in part, GRANTED in part;
REMANDED.
2 17-71586
Oracio Aguilar-Gabino v. Matthew Whitaker
Combined Opinion