                            In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 05-4494
TELESFORO GUTIERREZ-ALMAZAN,
                                                        Petitioner,
                               v.

ALBERTO R. GONZALES,
                                                       Respondent.
                        ____________
              Petition for Review of an Order of the
                 Board of Immigration Appeals.
                         No. A36-748-745
                        ____________
      ARGUED JUNE 1, 2007—DECIDED JUNE 21, 2007
                     ____________


 Before FLAUM, MANION, and ROVNER, Circuit Judges.
  FLAUM, Circuit Judge. Telesforo Gutierrez-Almazan, a
native and citizen of Mexico, was admitted to the United
States as a lawful permanent resident in 1981. In 1994,
he pleaded guilty to criminal sexual assault of a minor.
Based on that conviction, the United States identified
Gutierrez-Almazan as an aggravated felon and in 1999
initiated removal proceedings against him. After an IJ
ordered him removed to Mexico, the Board of Immigra-
tion Appeals (“BIA”) reversed, holding that he was eligible
for relief under § 212(c) of the Immigration and Natural-
ization Act (“INA”), 8 U.S.C. § 1182(c) (1994), which was
repealed in 1996 but, under INS v. St. Cyr, 533 U.S. 289,
326 (2001), remains available to aliens who pleaded guilty
2                                              No. 05-4494

to an aggravated felony prior to the effective date of the
repeal and would have been eligible for relief at the time.
On remand, the IJ again ordered Gutierrez-Almazan
removed because his attorney filed the wrong applica-
tion for relief. When Gutierrez-Almazan filed his brief
on appeal two days late, the BIA declined to accept the
brief. Gutierrez-Almazan petitions this Court for review,
arguing that the BIA abused its discretion by rejecting
his late brief. We grant Gutierrez-Almazan’s petition and
remand to the BIA.


                    I. INTRODUCTION
  Gutierrez-Almazan moved to the United States from
Mexico on May 29, 1981, when he was ten years old. He
obtained a green card and has lived in this country since
that time. In 1993, he married his wife, Patricia Cortez, an
American citizen. They have two children, who are also
American citizens.
  In 1994, Gutierrez-Almazan was convicted of criminal
sexual abuse of a minor and was sentenced to twenty-four
months probation and counseling. On March 29, 1999,
DHS seized Gutierrez-Almazan as part of “Operation
Predator,” an effort to find and remove non-citizens
convicted of crimes involving sexual abuse of a minor. DHS
served Gutierrez-Almazan with a Notice to Appear
(“NTA”), alleging that he was removable under 8 U.S.C.
§ 1227(a)(2)(A)(iii). After DHS placed Gutierrez-Almazan
in removal proceedings, he hired Federico Trigo to repre-
sent him. Over the course of the case, Gutierrez-Almazan
paid Trigo $10,000.
  On April 27, 1999, the immigration judge (“IJ”) held
that Gutierrez-Almazan’s conviction constituted an ag-
gravated felony and that he was therefore ineligible for
any relief from removal. The IJ ordered Gutierrez-Almazan
No. 05-4494                                               3

removed to Mexico. On May 27, 1999, he appealed the IJ’s
decision to the BIA, which gave Gutierrez-Almazan until
August 6, 1999 to file his brief. On August 5, 1999, Trigo
mailed the BIA an extension request because he “had a
congested schedule” for the preceding five weeks. On
August 13, 1999, the BIA received the request and
granted the extension.
  On June 25, 2001, the Supreme Court issued its opinion
in St. Cyr. On April 30, 2002, applying St. Cyr, the BIA
held that Gutierrez-Almazan was eligible for a waiver
under § 212(c) because he pled guilty to his criminal
offense before Congress repealed that statute. The BIA
remanded Gutierrez-Almazan’s case so that he could
apply for a § 212(c) waiver.
  On remand, the IJ scheduled a merits hearing on
Gutierrez-Almazan’s § 212(c) waiver for August 5, 2004
and ordered Gutierrez-Almazan to file all supporting
documents thirty days prior to the hearing. Gutierrez-
Almazan did not file any documents with the IJ prior to
the hearing. On August 5, 2004, Gutierrez-Almazan and
Trigo arrived at the hearing with an application for
cancellation of removal, not an application for a § 212(c)
waiver. Additionally, Gutierrez-Almazan did not bring
any witnesses to the hearing because Trigo had advised
him that it was unnecessary.
  DHS presented the IJ with two rap sheets. The first rap
sheet listed Gutierrez-Almazan’s full name and listed
“convicted sex offender registration” under the date April
1996. The second rap sheet referred to a January 2000
domestic battery arrest, a 2000 Driving Under the Influ-
ence (“DUI”) arrest, and two August 2001 DUI arrests.
DHS argued that Gutierrez-Almazan had not disclosed
any of these arrests to the court. Gutierrez-Almazan
denied that the second rap sheet was his, and Trigo noted
that the convictions were listed under an entirely different
4                                            No. 05-4494

name. Although Trigo was aware of the second rap sheet
before the hearing, he informed Gutierrez-Almazan not
to worry about it.
   The IJ noted that Gutierrez-Almazan was ineligible for
cancellation of removal and asked Trigo why he did not
file the correct application or include any supporting
documentation. Trigo responded:
    Your Honor, for several reasons. One of them is I,
    there was problems communicating with my client, but
    besides that, I was not sure. I was confused as to
    whether this hearing was not on the merits of whether
    he, he qualified, but whether Your Honor will recon-
    sider. And the instructions from the Board of Immigra-
    tion Appeals stated that it was addressed to Your
    Honor saying to reconsider that you were going to
    accept the application, and that was my confusion
    right there.
The IJ stated that there was no ambiguity in the BIA’s
decision because it clearly stated that Gutierrez-Almazan
was eligible for a § 212(c) waiver. The IJ noted that
Gutierrez-Almazan’s documents were “woefully, woefully
inadequate,” and then held that Gutierrez-Almazan had
“abandoned his right to file for a § 212(c) waiver by lack
of prosecution and failure to file the application within
the time set by the Court.” Gutierrez-Almazan appealed
to the BIA pro se.
  On June 23, 2005, Gutierrez-Almazan found an envelope
from the BIA in a pile of old newspapers in his house.
Gutierrez-Almazan did not open the envelope because
he planned to take it to the Legal Assistance Foundation
of Metropolitan Chicago (“LAF”). On June 28, 2005,
Gutierrez-Almazan took to the letter to LAF and discov-
ered that his appeal brief was due that day. On June 29,
2005, LAF decided to represent Gutierrez-Almazan, and on
July 1, 2005, it sent a brief and a motion to the BIA by
No. 05-4494                                                   5

overnight carrier seeking leave to file a late brief.
Gutierrez-Almazan attached to the motion evidence of
Trigo’s ineffective assistance.
   On July 13, 2005, the BIA denied Gutierrez-Almazan’s
motion and returned his brief. On September 20, 2005,
Gutierrez-Almazan’s attorney sent a motion for leave to
file an amended notice of appeal, accompanied by an
amended notice of appeal. The BIA did not rule on the
motion. On November 4, 2005, the BIA held that
Gutierrez-Almazan failed to file a timely brief that met
the BIA’s requirements for an ineffective assistance of
counsel claim. The BIA further found that Gutierrez-
Almazan could not show prejudice from any ineffective
assistance because the BIA had ruled in Matter of Blake,
23 I & N. Dec. 722 (BIA 2005), that non-citizens con-
victed of sexual abuse of a minor are ineligible for § 212(c)
relief. On December 2, 2005, Gutierrez-Almazan filed his
petition for review.


                      II. DISCUSSION
  Gutierrez-Almazan argues that the BIA erred by deny-
ing his motion to file a late brief. This Court reviews the
BIA’s decision for an abuse of discretion. Cf. Singh v.
Gonzales, 404 F.3d 1024, 1027 (7th Cir. 2005) (stating
that the Court reviews the denial of a motion to reopen or
reconsider under an abuse of discretion standard).
   The BIA’s regulations grant it the discretion to accept or
reject late briefs. 8 C.F.R. § 1003.3(c)(1) (“In its discretion,
the BIA may consider a brief that has been filed out of
time.”). Although “the BIA is not required to write an
exegesis on every contention,” it is required to “consider
the issues raised, and announce its decision in terms
sufficient to enable a reviewing court to perceive that
it has heard and thought and not merely reacted.” Ssali v.
6                                                  No. 05-4494

Gonzales, 424 F.3d 556, 564 (7th Cir. 2005) (internal
citations omitted). In denying Gutierrez-Almazan’s
motion to file a late brief, the BIA merely stated, “We find
the reason stated by the respondent insufficient for us
to accept the untimely brief in our exercise of discretion.”
This sparse ruling was inadequate to enable us to per-
form any meaningful review. The fact that the BIA found
Gutierrez-Almazan’s reason insufficient to accept his
late brief is implicit in its rejection of his motion. The
BIA has given this Court no indication that it took
account of Gutierrez-Almazan’s pro se status, education,
language skills, or any other factors that might be rele-
vant to the merits of his motion. Indeed, we cannot tell
from the BIA’s order whether it “heard and thought,” or
“merely reacted.”
  We also note that the BIA treated Gutierrez-Almazan’s
requests for extensions inconsistently. During Gutierrez-
Almazan’s first appeal, Trigo requested an extension of
time to file a brief with the BIA, stating that he “had a
congested schedule for the past five weeks.” The BIA
received this request over a week after the brief was
due, but nevertheless granted the motion. In his second
appeal, the BIA had both the request for an extension and
Gutierrez-Almazan’s brief within three days of its due
date, yet the BIA denied the motion. In short, we are
unable to determine from the BIA’s conclusory statement
whether it abused its discretion by refusing to accept
Gutierrez-Almazan’s late brief.1



1
  Gutierrez-Almazan also challenges the BIA’s holding that he
could not show prejudice from Trigo’s ineffective assistance
because he was ineligible for a § 212(c) waiver. Should the BIA
accept his brief on remand, it may wish to reconsider its preju-
dice ruling in light of the Second Circuit’s decision in Blake v.
Carbone, et al., ___ F.3d ___, 2007 WL 1574760 (2d Cir. June 1,
2007).
No. 05-4494                                          7

                 III. CONCLUSION
 For the above reasons, we REMAND to the BIA.

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




                USCA-02-C-0072—6-21-07
