                                                                            FILED
                              NOT FOR PUBLICATION                            DEC 29 2009

                                                                         MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                              FOR THE NINTH CIRCUIT



 GHALEB SARAMA,                                   No. 08-73724

               Petitioner,                        Agency No. A075-691-693

   v.
                                                  MEMORANDUM *
 ERIC H. HOLDER Jr., Attorney General,

               Respondent.



                       On Petition for Review of an Order of the
                           Board of Immigration Appeals

                             Submitted December 15, 2009 **

Before:        GOODWIN, WALLACE, and FISHER, Circuit Judges.

        Ghaleb Sarama, a native of Jordan and citizen of Israel, petitions for review

of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an

immigration judge’s (“IJ”) decision denying his application for asylum,



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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withholding of removal, and protection under the Convention Against Torture. We

have jurisdiction under 8 U.S.C. § 1252. We grant the petition for review and

remand.

       The BIA determined that Sarama’s failure to submit fingerprints was a

sufficient reason to deny his application for relief. The BIA, however, did not have

the benefit of our intervening decision in Cui v. Mukasey, 538 F.3d 1289 (9th Cir.

2008) (holding IJ’s denial of petitioner’s request for a continuance constituted an

abuse of discretion where law governing fingerprint requirement was unclear and

uncertain, and IJ did not warn petitioner that failure to submit new fingerprints in

advance of merits hearing could result in pretermission of her claims). The

government contends this case should be remanded for the BIA to reconsider its

dismissal of Sarama’s appeal in light of Cui, and we agree. See id. at 1292-95; see

also Karapetyan v. Mukasey, 543 F.3d 1118, 1129-32 (9th Cir. 2008) (reaching

same result as in Cui).

       We also grant the petition for review and remand as to Sarama’s claim that

the IJ violated his due process rights by failing to provide adequate notice

regarding the fingerprint requirement. Sarama raised this contention to the BIA,

but the BIA did not address it, so we remand for the BIA to do so in the first

instance. See Montes-Lopez v. Gonzales, 486 F.3d 1163, 1165 (9th Cir. 2007).


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       Because the BIA did not rely upon the IJ’s finding that Sarama’s asylum

claim was time-barred as a ground for denying relief, the BIA properly declined to

address Sarama’s due process claim regarding the IJ’s time-bar finding.

       PETITION FOR REVIEW GRANTED; REMANDED.




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