Opinion
No. 05-71001.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed December 7, 2009.
Wayne Spindler, Esq., Tarzana, CA, for Petitioner.
CAC-District Counsel, Esq., Office of the District Counsel, Department of Homeland Security, Los Angeles, CA, Ronald E. Lefevre, Chief Counsel, Office of the District Counsel, Department of Homeland Security, San Francisco, CA, Mark C. Walters, Esq., Arthur L. Rabin, Esq., DOJ — U.S. Department of Justice, Civil Div./Office of Immigration Lit., Washington, DC, for Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A070-915-782.
Before: ALARCÓN, TROTT, and TASHIMA, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Rolando Abilio Rivas Estrada, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals' order summarily affirming an immigration judge's ("IJ") order denying his applications for adjustment of status and voluntary departure. We have jurisdiction under 8 U.S.C. § 1252. We review de novo questions of law. Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1145 (9th Cir. 2002). We grant the petition for review and remand for further proceedings.
The IJ denied Rivas Estrada's request for relief under the Convention Against Torture ("CAT") on the mistaken assumption that his application had been previously considered and denied in a prior proceeding. We reject the government's contention that Rivas Estrada failed to exhaust this issue. See Alvarez Figueroa v. Mukasey, 543 F.3d 487, 493 (9th Cir. 2008). We accordingly remand to the agency to consider Rivas Estrada's eligibility for relief under the CAT in the first instance. See INS v. Ventura, 537 U.S. 12, 16, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam).
On remand, the agency should also consider whether Rivas Estrada is eligible for derivative adjustment of status in light of our recent decisions in Landin-Molina v. Holder, 580 F.3d 913 (9th Cir. 2009) and ` Morales-Garcia v. Holder, 567 F.3d 1058' (9th Cir. 2009).
In light of our disposition, we need not address Rivas Estrada's remaining contentions.
The government shall bear the costs for this petition for review.
PETITION FOR REVIEW GRANTED; REMANDED.