FILED
NOT FOR PUBLICATION
OCT 11 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DOUGLAS FLORES-GONZALEZ, AKA No. 13-71098
Douglas Alexander Flores-Gonzalez,
Agency No. A098-384-860
Petitioner,
v. MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 3, 2016
Pasadena, California
Before: REINHARDT, FERNANDEZ, and OWENS, Circuit Judges.
Petitioner Douglas Flores-Gonzalez petitions for review of the Board of
Immigration Appeals’ (“BIA”) decision denying his untimely motion to reopen
based on ineffective assistance of counsel. As the parties are familiar with the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
facts, we do not recount them here. We grant the petition and remand the case for
further proceedings consistent with this disposition.
The BIA determined that Flores-Gonzalez was not prejudiced by his former
attorneys’ failure to inform him of Special Immigrant Juvenile Status (“SIJS”), 8
U.S.C. § 1101(a)(27)(J), because there was no evidence that Flores-Gonzalez had a
qualifying juvenile court order. However, as the government concedes, the BIA
did not address Flores-Gonzalez’s argument that his attorneys’ ineffectiveness
prevented him from obtaining a juvenile court order required for SIJS. The
government argues that Flores-Gonzalez would not have qualified for such an
order because the evidence does not support that he could not be reunited with one
or both of his parents as a result of “abuse, neglect, abandonment, or similar basis
found under State law.” 8 U.S.C. § 1101(a)(27)(J); see also 8 C.F.R. § 204.11.
But, “we cannot deny a petition for review on a ground that the BIA itself did not
base its decision.” Hernandez-Cruz v. Holder, 651 F.3d 1094, 1110 (9th Cir.
2011).
The BIA also determined that Flores-Gonzalez failed to fully comply with
the procedural requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988).
See Iturribarria v. INS, 321 F.3d 889, 900 (9th Cir. 2003) (setting forth Lozada
requirements). However, the BIA did not address Flores-Gonzalez’s argument that
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he was excused from doing so because the ineffectiveness was plain on the face of
the administrative record. See Castillo-Perez v. INS, 212 F.3d 518, 525 (9th Cir.
2000) (noting that “a failure to comply with Lozada requirements is not necessarily
fatal to a motion to reopen . . . when ‘[t]he facts are plain on the face of the
administrative record’” (citation omitted)).
Accordingly, we remand so that the BIA may fully address all of the parties’
arguments in the first instance. See Su Hwa She v. Holder, 629 F.3d 958, 963-64
(9th Cir. 2010) (“Rather than countenance a decision that leaves us to speculate
based on an incomplete analysis, we remand the case to the BIA for
clarification.”); Andia v. Ashcroft, 359 F.3d 1181, 1184 (9th Cir. 2004) (per
curiam) (“If we conclude that the BIA’s decision cannot be sustained upon its
reasoning, we must remand to allow the agency to decide any issues remaining in
the case.”). We remand the entire petition because the arguments the BIA failed to
address may impact the other issues raised by Flores-Gonzalez in his petition for
review.
The petition for review is GRANTED and we REMAND to the BIA for
further proceedings consistent with this disposition.
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