Gonzalo Pino Arellano 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 Honorable Edward R. Korman, Senior United States District Judge for the
Eastern District of New York, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GONZALO PINO ARELLANO,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney
General
Respondent.
No. 08-70554
Agency No. A078-903-932
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted August 6, 2012
San Francisco, California
Before: KOZINSKI, Chief Judge, CALLAHAN, Circuit Judge, and KORMAN,
Senior District Judge.**
The IJ abused his discretion by concluding that Arellano abandoned his
application because it was incomplete.
FILED
NOV 13 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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1. Arellano’s asylum application arguably was materially incomplete in
only one respect: his date(s) of entry into the United States, which would
determine whether his application was timely. The parties, however, at least knew
Arellano’s initial date of entry from the Notice to Appear. While Arellano also left
blank the space for answers to other questions, this information was contained
elsewhere in the application or was immaterial to his asylum claim.
Moreover, the IJ should have allowed Arellano to remedy the relatively
minor deficiencies in his application at the October 6, 2006 hearing. The BIA
itself has held that IJs should not rely only on a written application, but should
instead solicit the applicant’s oral testimony. See Matter of Fefe, 20 I. & N. Dec.
116, 118 (BIA 1989) (applying nearly identical precursor to 8 C.F.R. §
1240.11(c)(3)(iii)); see also Kllokoqi v. Gonzales, 439 F.3d 336, 342 (7th Cir.
2005) (“[A]n asylum application need not be complete and may be supplemented
with testimony.”). At the very least, the IJ should have given Arellano “the
opportunity to present any relevant and useful information” about whether the one-
year jurisdictional bar applies to his case. See 8 C.F.R. § 1208.4(a).
And even if Arellano’s application was materially incomplete, the
government should have returned it to him long before the October hearing
pursuant to 8 C.F.R. § 1208.3(c)(3), which provides that an incomplete application

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shall be returned within 30 days of its receipt. However, “[i]f the [government] has
not mailed the incomplete application back to the applicant within 30 days, it shall
be deemed complete.” 8 C.F.R. § 1208.3(c)(3). Because Arellano’s asylum
application was not returned, the IJ was obligated to accept it. See Padilla-Padilla
v. Gonzales, 463 F.3d 972, 980-81 (9th Cir. 2006).
2. On remand, the IJ can consider whether Arellano filed his asylum
application within one year of his last date of entry into the United States, see 8
U.S.C. § 1158(a)(2)(B); 8 C.F.R. § 1208.4(a)(2), and whether he abandoned his
petition under 8 C.F.R. § 1208.8(a) when he left the country (assuming that he
did). If these issues are resolved in Arellano’s favor, the IJ may then address the
merits of his case.
The petition for review is GRANTED and the matter is REMANDED to the
BIA for further proceedings.

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Arellano v. Holder, No. 08-70554
CALLAHAN, Circuit Judge, dissenting:
I respectfully dissent. Arellano filed a barebones asylum application that, in
addition to lacking important details, offered at best a weak explanation for why he
had not filed it within “within one year of his last date of entry into the United
States.” 8 U.S.C. § 1158(a)(2)(B); see also 8 C.F.R. § 1208.4(a)(2). Arellano told
the immigration judge (“IJ”) that he wanted to proceed with that application, but
that he was going to supplement it. In other words, everyone at the May 24, 2006,
hearing understood that more needed to be done. Indeed, this may have been the
reason the IJ did not reject or return Arellano’s application as incomplete under 8
C.F.R. § 1208.3.
Thus, it should have come as no surprise when, at the October 6, 2010,
hearing, the IJ was perplexed by Arellano’s failure to supplement his application,
despite having had five months to do so. Busy immigration courts should not be
required to give an alien a second or third chance to do what he should have done
(and promised he would do) initially. Moreover, when the IJ expressed his
concerns, Arellano made no representation that his application would be timely if
only the IJ gave him the chance to supplement it; the IJ might reasonably have
thought more process would be a useless exercise. The IJ weighed the parties’
arguments and set forth a reasoned basis for his decision. Even if Arellano could
FILED
NOV 13 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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have offered some further explanation, doing so would have been unfair to the
government, because it would not have had time to investigate or consider
whatever additional information Arellano intended to provide.
Because, in my view, the IJ did not abuse his discretion in pretermitting
Arellano’s asylum application, I would grant the government’s request for a
voluntary remand to apply 8 C.F.R. §§ 1003.31(c) and/or 1208.8(a), rather than
grant Arellano’s petition.

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