MARIO GOCHES-MONTANO V. ERIC H. HOLDER JR., No. 08-73136 (9th Cir. 2012)

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FILED MAR 01 2012 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT MARIO ORLANDO GOCHESMONTANO, No. 08-73136 Agency No. A098-438-059 Petitioner, MEMORANDUM * v. ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted February 21, 2012 ** Before: FERNANDEZ, McKEOWN, and BYBEE, Circuit Judges. Mario Orlando Goches-Montano, a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals ( BIA ) order denying his motion to reconsider its underlying decision dismissing as untimely his appeal * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). from an immigration judge s ( IJ ) removal order. We have jurisdiction under 8 U.S.C. § 1252(a). We review for abuse of discretion the BIA s denial of a motion to reconsider. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We grant the petition for review. The BIA dismissed Goches-Montano s appeal as untimely without the benefit of our decision in Irigoyen-Briones v. Holder, 644 F.3d 943, 948 (9th Cir. 2011), which held that the 30-day deadline for filing a notice of appeal with the BIA is not jurisdictional. We therefore remand for the BIA to reconsider whether, under the circumstances presented, it will hear the appeal from the IJ s decision in this case. See INS v. Ventura, 537 U.S. 12, 16 (2002). PETITION FOR REVIEW GRANTED; REMANDED. 2 08-73136

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