Opinion
No. 05-77350.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed September 23, 2008.
Michelle Gonzalez, Esquire, Law Office of Michelle Gonzalez, Huntington Park, CA, for Petitioner.
CAC-District Counsel, Esquire, Office of the District Counsel, Los Angeles, CA, Ronald E. Lefevre, Office of the District Counsel, San Francisco, CA, Virginia Lum, U.S. Department of Justice, Civil Division/Office of Immigration Litigation, Washington, DC, for Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A95-191-787.
Before: TASHIMA, SILVERMAN, and N.R. SMITH, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Donaciano Anzurez Alarcon, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals' ("BIA") order dismissing his appeal from an immigration judge's decision pretermitting his application for cancellation of removal. We have jurisdiction under 8 U.S.C. § 1252. We remand for further proceedings.
We have jurisdiction over Anzurez Alarcon's contention that his conviction is not covered by 8 U.S.C. § 1229(b)(b)(1)(C). See Garcia-Ramirez v. Gonzales, 423 F.3d 935, 938 (9th Cir. 2005) (per curiam) ("Retroactivity challenges to immigration laws implicate legitimate due process considerations that need not be exhausted in administrative proceedings because the Board of Immigration Appeals cannot give relief on such claims.").
The agency determined that Anzurez Alarcon's pre-IIRIRA conviction barred him from being eligible for cancellation of removal. See 8 U.S.C. § 1229b(b)(1)(C). At the time of its decision, the BIA did not have the benefit of our decision in Lopez-Castellanos v. Gonzales, 437 F.3d 848 (9th Cir. 2006). We therefore remand for the agency to consider Anzurez Alarcon's application for cancellation of removal in light of our intervening case law.