                                                                           FILED
                              NOT FOR PUBLICATION                           DEC 07 2009

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




                              FOR THE NINTH CIRCUIT



 ROLANDO ABILIO RIVAS ESTRADA,                    No. 05-71001

               Petitioner,                        Agency No. A070-915-782

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

               Respondent.



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

                             Submitted November 17, 2009 **

Before:        ALARCÓN, TROTT, and TASHIMA, Circuit Judges.

        Rolando Abilio Rivas Estrada, a native and citizen of Guatemala, petitions

for review of the Board of Immigration Appeals’ order summarily affirming an

immigration judge’s (“IJ”) order denying his applications for adjustment of status



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

IH/Research
and voluntary departure. We have jurisdiction under 8 U.S.C. § 1252. We review

de novo questions of law. Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1145

(9th Cir. 2002). We grant the petition for review and remand for further

proceedings.

        The IJ denied Rivas Estrada’s request for relief under the Convention

Against Torture (“CAT”) on the mistaken assumption that his application had been

previously considered and denied in a prior proceeding. We reject the

government’s contention that Rivas Estrada failed to exhaust this issue. See

Alvarez Figueroa v. Mukasey, 543 F.3d 487, 493 (9th Cir. 2008). We accordingly

remand to the agency to consider Rivas Estrada’s eligibility for relief under the

CAT in the first instance. See INS v. Ventura, 537 U.S. 12, 16 (2002) (per curiam).

        On remand, the agency should also consider whether Rivas Estrada is

eligible for derivative adjustment of status in light of our recent decisions in

Landin-Molina v. Holder, 580 F.3d 913 (9th Cir. 2009) and Morales-Garcia v.

Holder, 567 F.3d 1058 (9th Cir. 2009).

        In light of our disposition, we need not address Rivas Estrada’s remaining

contentions.

        The government shall bear the costs for this petition for review.

        PETITION FOR REVIEW GRANTED; REMANDED.


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