Jose Luis Fernandez v. ERIC H. HOLDER Jr., Attorney General

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).
JT/Research
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE LUIS FERNANDEZ,
Petitioner,
v.
ERIC H. HOLDER Jr., Attorney General,
Respondent.
No. 07-71479
Agency No. A075-183-069
MEMORANDUM *
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 17, 2009**
Before: ALARCÓN, TROTT, and TASHIMA, Circuit Judges.
Jose Luis Fernandez, a native and citizen of Mexico, petitions for review of
the Board of Immigration Appeals’ order dismissing his appeal from an
FILED
DEC 14 2009
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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immigration judge’s removal order. We have jurisdiction under 8 U.S.C. § 1252.
We grant the petition for review and remand for further proceedings.
The agency determined that Fernandez’s failure to submit his fingerprints at
his hearing was sufficient reason to deny his application for a waiver under former
Immigration and Nationality Act § 212(c), 8 U.S.C. § 1182(c). The agency,
however, did not have the benefit of our intervening decision in Cui v. Mukasey,
538 F.3d 1289 (9th Cir. 2008), which held that refusing to continue proceedings
for fingerprint processing may be an abuse of discretion. See also 8 C.F.R.
§ 1003.47(d) (“The [IJ] shall specify for the record . . . the consequences for failing
to comply with the requirement [to provide fingerprints].”). We therefore remand
for the agency to reconsider its denial of Fernandez’s application. See Cui, 538
F.3d at 1292-95; see also Karapetyan v. Mukasey, 543 F.3d 1118, 1129-32 (9th
Cir. 2008)
PETITION FOR REVIEW GRANTED; REMANDED.

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