Opinion
Argued and Submitted September 11, 2006.
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Daniel M. Kowalski, Esq., Austin, TX, for Petitioner.
Ronald E. Lefevre, Chief Counsel, Office of the District Counsel Department of Homeland Security, San Francisco, CA, WWS-District Counsel, Immigration and Naturalization Service Office of the District Counsel, Seattle, WA, Genevieve Holm, Esq., Anthony W. Norwood, Esq., DOJ-U.S. Department of Justice Civil Div./Office of Immigration Lit., Daniel Jerome Davis, Esq., DOJ-U.S. Department of Justice Civil Division, Washington, DC, for Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A75-107-918.
Before: SCHROEDER, Chief Judge, KLEINFELD and BEA, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
Ana Maria Lanza petitions for review of a Board of Immigration Appeals order that upheld the decision of the immigration judge that Lanza's asylum application was both untimely and without merit. This BIA order was entered after our previous remand in the case to clarify whether the BIA's affirmance of the Immigration Judge was on timeliness grounds, and hence unreviewable or on the merits, and hence, reviewable to a degree. See Lanza v. Ashcroft, 389 F.3d 917 (9th Cir.2004).
The BIA has now responded that it relied on both grounds. Lanza petitions for our review of the denial insofar as the denial relied on the merits. Because the BIA decision rested as well on an independent, and non-reviewable, discretionary determination
Page 715.
of untimeliness, we must deny relief. This court stated as much in our first Lanza decision. See id. at 929.
The petition for review is DENIED.