                                                                           FILED
                              NOT FOR PUBLICATION                          DEC 12 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                              FOR THE NINTH CIRCUIT


JUAN GOMEZ-GARCIA,                               No. 11-70016

               Petitioner,                       Agency No. A091-591-412

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

               Respondent.


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

                             Submitted November 19, 2013**

Before:        CANBY, TROTT, and THOMAS, Circuit Judges.

       Juan Gomez-Garcia, a native and citizen of Mexico, petitions for review of

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

immigration judge’s removal order. We have jurisdiction under 8 U.S.C. § 1252.

We review de novo questions of law. Sandoval-Luna v. Mukasey, 526 F.3d 1243,


          *
             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).
1246 (9th Cir. 2008) (per curiam). We grant in part and deny in part the petition

for review and remand.

      In concluding that Gomez-Garcia was inadmissible under 8 U.S.C.

§ 1182(a)(9)(C)(i)(II), the BIA did not have the benefit of Duran Gonzales v. DHS,

712 F.3d 1271 (9th Cir. 2013) and Carrillo de Palacios v. Holder, 708 F.3d 1066

(9th Cir. 2013), in which the court set out the retroactivity test to be applied in such

cases. See Duran Gonzales, 712 F.3d at 1275-78. We remand to the BIA to apply

the retroactivity test in the first instance. See id. at 1278 (remanding for

retroactivity analysis given the fact that the record has not been fully developed).

      Gomez-Garcia’s motion to hold his case in abeyance pending a decision in

Duran Gonzales v. DHS, 659 F.3d 930 (9th Cir. 2011) is denied as moot. The

parties shall bear their own costs for this petition for review.

      PETITION FOR REVIEW GRANTED in part; DENIED in part; and

REMANDED.




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