                                                                           FILED
                             NOT FOR PUBLICATION                            JUL 15 2011

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




                             FOR THE NINTH CIRCUIT



MARIA FRANCISCA AGUIRRE                          No. 08-71118
JIMENEZ,
                                                 Agency No. A097-881-314
               Petitioner,

  v.                                             MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,

               Respondent.



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

                             Submitted July 12, 2011 **

Before:        SCHROEDER, ALARCÓN, and LEAVY, Circuit Judges.

       Maria Francisca Aguirre Jimenez, a native and citizen of Guatemala,

petitions for review from the Board of Immigration Appeals’ (“BIA”) order

dismissing her appeal from an immigration judge’s (“IJ”) decision denying her

application for asylum, withholding of removal, relief under the Convention

          *
             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).
Against Torture (“CAT”), and cancellation of removal. Our jurisdiction is

governed by 8 U.S.C. § 1252. We review de novo questions of law and review for

substantial evidence factual findings. Husyev v. Mukasey, 528 F.3d 1172, 1177

(9th Cir. 2008). We dismiss in part, grant in part, and remand the petition for

review.

      We lack jurisdiction to review the agency’s discretionary determination that

Aguirre Jimenez failed to show exceptional and extremely unusual hardship to her

United States citizen son. See 8 U.S.C. § 1252(a)(2)(B); Martinez-Rosas v.

Gonzales, 424 F.3d 926, 930 (9th Cir. 2005).

      The BIA failed to address Aguirre Jimenez’s contention on appeal that

extraordinary circumstances excused the untimely filing of her asylum application.

See Moreno-Morante v. Gonzales, 490 F.3d 1172, 1173 n.1 (9th Cir. 2007)

(general argument in brief to BIA is sufficient to put BIA on notice and allow BIA

to pass on the issue). Accordingly, we remand Aguirre Jimenez’s asylum claim to

the BIA to address the issue in the first instance. See INS v. Ventura, 537 U.S. 12,

16-18 (2002) (per curiam).

      In addition, the IJ did not provide a reasoned explanation for its alternative

denial of Aguirre Jimenez’s asylum claim on the merits, and the BIA did not cure

this error in its conclusory determination regarding withholding of removal. See


                                          2                                    08-71118
Avetova-Elisseva v. INS, 213 F.3d 1192, 1197 (9th Cir. 2007) (due to “the lack of

analysis that the BIA opinion devoted to the issue at hand,” looking “to the IJ’s

oral decision as a guide to what lay behind the IJ’s conclusion”). In particular, the

BIA and the IJ did not address Aguirre Jimenez’s claims for asylum and

withholding of removal on account of her race, as a member of the native Kanjobal

tribe, and her membership in a particular social group, as an indigenous

Guatemalan woman. In light of this, and because the agency did not have the

benefit of our decision in Perdomo v. Holder, 611 F.3d 662, 669 (9th Cir. 2010),

we remand to the BIA for consideration of these issues in the first instance. See

Ventura, 537 U.S. at 16-18.

      Finally, we also grant the petition for review as to Aguirre-Jimenez’s CAT

claim and remand for the agency to reconsider the claim in light of all the evidence

in the record, including the country reports. See Aguilar-Ramos v. Holder, 594

F.3d 701, 705 & n.6 (9th Cir. 2010); Al-Saher v. INS, 268 F.3d 1143, 1146-48 (9th

Cir. 2001).

      Each party shall bear its own costs for this petition for review.

      PETITION FOR REVIEW DISMISSED in part; GRANTED in part;

REMANDED.




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