Yang Lu v. Jeff B. Sessions

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 16 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

YANG GUN LU, No. 13-74185

Petitioner, Agency No. A072-556-683

v.
MEMORANDUM*
JEFF B. SESSIONS, Attorney General,

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted February 13, 2017
San Francisco, California

Before: CANBY, SILER,** and HURWITZ, Circuit Judges.

After Yang Gun Lu, a Chinese national with lawful permanent resident status,

pleaded guilty in Arizona state court to two counts of attempted production of

marijuana, an immigration judge (“IJ”) found him removable and denied his various

applications for relief. The Board of Immigration Appeals (“BIA”) affirmed. We

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Eugene E. Siler, United States Circuit Judge for the U.S.
Court of Appeals for the Sixth Circuit, sitting by designation.
have jurisdiction over Lu’s petition for review under 8 U.S.C. § 1252(a). We grant

the petition and remand.

The government’s brief contends only that Lu failed to exhaust the claims in

his petition for review before the BIA, failing to address those claims on the merits.

We reject the government’s exhaustion argument because the BIA adopted and

affirmed the IJ’s order, expressly citing In re Burbano, 20 I. & N. Dec. 872, 874

(B.I.A. 1994). Because each of Lu’s arguments was either raised to the IJ or the

BIA, or addressed on the merits in the agency proceedings, his claims have been

exhausted. See Arreguin-Moreno v. Mukasey, 511 F.3d 1229, 1232 (9th Cir. 2008).

The government has suggested that if we find Lu’s claims exhausted, we

should grant his petition for review and remand to the agency for further

proceedings. Lu agrees. Without either approving the government’s decision to

forego briefing of the merits or finding further proceedings necessary, we accede to

the parties’ joint request.

PETITION GRANTED; REMANDED.