Ixtos-Quiema De Colop v. Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 23 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ANTONIA IXTOS-QUIEMA DE No. 23-3828 COLOP; et al., Agency Nos. A201-921-092 Petitioners, A201-921-093 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted October 16, 2024** Before: SILVERMAN, R. NELSON, and MILLER, Circuit Judges. Antonia Ixtos-Quiema De Colop and her child, natives and citizens of Guatemala, petition for review of the Board of Immigration Appeals’ (“BIA”) order dismissing their appeal from an immigration judge’s decision denying their * 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). application for asylum, and denying lead petitioner’s applications for withholding of removal and protection under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We grant the petition for review. Petitioners’ notices to appear did not include the date and time of the hearing. We remand for reconsideration in light of Matter of Fernandes, 28 I. & N. Dec. 605 (BIA 2022), decided after briefing before the BIA was completed. Under the circumstances, exhaustion was not required. See Alcaraz v. INS, 384 F.3d 1150, 1158 (9th Cir. 2004) (“We do not require an alien to exhaust administrative remedies on legal issues based on events that occur after briefing to the BIA has been completed.”). In light of our remand, we do not reach the agency’s denial of asylum, withholding of removal, and CAT protection. The motion for a stay of removal is granted. The stay of removal remains in place until the mandate issues. PETITION FOR REVIEW GRANTED; REMANDED. 2 23-3828