OpenJurist

988 F2d 119 Ibarra-Gonzales v. US Immigration and Naturalization Service

988 F.2d 119

Raymundo IBARRA-GONZALES, Petitioner,
v.
U.S. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 90-70549.

United States Court of Appeals, Ninth Circuit.

Feb. 19, 1993.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Petition to Review a Decision of the Immigration and Naturalization Service; No. Asn-rst-unm.

I.N.S.

VACATED AND REMANDED.

1

Before SCHROEDER and BRUNETTI, Circuit Judges, and KING,** District Judge.

2

MEMORANDUM***

3

Petitioner Raymundo Ibarra-Gonzales seeks review of the Board of Immigration Appeals' ("BIA") dismissal of his application for asylum. The BIA took administrative notice of the change of government in Nicaragua and concluded that petitioner therefore had no well-founded fear of persecution from the Sandinistas. We recently held that the BIA may not take administrative notice on this issue without giving petitioner adequate warning and an opportunity to be heard. Castillo-Villagra v. I.N.S., 972 F.2d 1017 (9th Cir.1992). We must reach the same result here.

4

We also reverse and remand the BIA's denial of petitioner's claim of past persecution. The BIA's decision in this regard runs afoul of this circuit's prohibition of "boilerplate opinions." Castillo v. I.N.S., 951 F.2d 1117 (9th Cir.1991). In Castillo we held that the BIA's opinion "must state with sufficient particularity and clarity the reasons for denial of asylum." Id. at 1121. A review of the record in this case (and others that accompany it) demonstrates that the BIA failed to abide by Castillo 's mandate.

5

Petitioner also contends he is a United States citizen by virtue of his father's citizenship. The BIA's decision does not address the citizenship of Ibarra-Gonzales' father. We may not base our decision on the IJ's findings, since "this court's review is limited to the BIA's decision." Id. at 1120. We therefore remand to the BIA for a determination on the merits of this issue.

6

After his petition to this court, petitioner filed a motion to reopen the suspension of deportation hearing with the BIA. The BIA should rule on this motion before we review its merits. Exhaustion of administrative remedies, especially by means of the BIA's consideration of the motion to reopen, allows the BIA to develop a proper record, limits parties from bypassing an administrative scheme, and lets the BIA correct its own mistakes. Castillo-Villagra v. I.N.S., 972 F.2d 1017, 1024 (9th Cir.1992). Since there are factual questions here that the court cannot resolve, the BIA should rule on this motion to reopen. We are not compelled to deny jurisdiction over the other claims because of the pendency of this motion to reopen. Berroteran-Melendez v. I.N.S., 955 F.2d 1251, 1254 (9th Cir.1992).

7

The petition for review is GRANTED; the order for deportation is VACATED; cause REMANDED.

*

The panel finds this case appropriate for submission without argument pursuant to Fed.R.App.P. 34(a) and Ninth Circuit Rule 34-4

**

Honorable Samuel P. King, Senior U.S. District Judge for the District of Hawaii, sitting by designation

***

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