                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                       AUG 19 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

EDGAR ISRAEL MARTINEZ, AKA                      No.    14-73317
Carlos Gutierrez,
                                                Agency No. A095-003-185
                Petitioner,

 v.                                             MEMORANDUM*

WILLIAM P. BARR, Attorney General,

                Respondent.

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

                              Submitted August 17, 2020**


Before: TROTT, SILVERMAN, and N.R. SMITH, Circuit Judges.

      Edgar Israel Martinez, a native and citizen of El Salvador, 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 protection

under the Convention Against Torture (“CAT”).


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      We have jurisdiction under 8 U.S.C. § 1252. We review de novo whether a

petitioner has been afforded due process. Ibarra-Flores v. Gonzales, 439 F.3d 614,

620 (9th Cir. 2006). “[A]n agency’s failure to follow its own regulations [is] not

per se a violation of due process, but . . . constitutional rights [are] implicated

‘when the agency’s disregard of its rules results in a procedure which in itself

impinged upon due process rights.’” Brown v. Holder, 763 F.3d 1141, 1149 (9th

Cir. 2014) (quoting Bates v. Sponberg, 547 F.2d 325, 329 (6th Cir. 1976)).

      Martinez filed a Notice of Appeal from the IJ’s decision and specified his

intent to file a separate written brief in support of his appeal. When the BIA

obtains jurisdiction over a case via a Notice of Appeal, its regulations include

mandatory language concerning the issuance of a briefing schedule. 8 C.F.R.

§ 1003.3(c)(1).

      Separately, the IJ ended her decision by mistakenly ordering “that this

matter be referred back to the Department of Homeland Security.” The BIA

inferred that the IJ’s “intention was to certify her decision to the Board.” When an

IJ certifies a case to the BIA, the IJ must advise the parties of the “right to make

representations before the Board, including the making of a request for oral

argument and the submission of a brief.” 8 C.F.R. § 1003.7. The BIA is

authorized to review a certified case “without regard to” the provisions of 8 C.F.R.

§ 1003.7, but only “if it determines that the parties have already been given a fair



                                            2                                     14-73317
opportunity to make representations before the Board regarding the case, including

the opportunity [to] request oral argument and to submit a brief.” 8 C.F.R.

§ 1003.1(c).

      Whether it was exercising its jurisdiction based on Martinez’s Notice of

Appeal or construing the IJ’s order as a certification of Martinez’s case, the BIA

never set a briefing schedule, and the record does not show whether it determined

that Martinez had already been given a fair opportunity to make representations

before it. In reviewing a petition, we can “consider only the grounds relied upon

by the BIA.” Singh v. Holder, 649 F.3d 1161, 1164 n.6 (9th Cir. 2011) (en banc)

(internal quotation marks omitted). If the BIA's decision “cannot be sustained

upon its reasoning, we must remand to allow the agency to decide any issues

remaining in the case.” Andia v. Ashcroft, 359 F.3d 1181, 1184 (9th Cir. 2004)

(per curiam). In the absence of any explanation from the BIA why it did not set a

briefing schedule, we must remand so the BIA can expressly make that

determination in the first instance.

      REMANDED for further proceedings consistent with this disposition.




                                          3                                   14-73317
