JUAN GOMEZ-GARCIA V. ERIC HOLDER, JR., No. 11-70016 (9th Cir. 2013)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS DEC 12 2013 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JUAN GOMEZ-GARCIA, Petitioner, No. 11-70016 Agency No. A091-591-412 v. MEMORANDUM* ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted November 19, 2013** Before: CANBY, TROTT, and THOMAS, Circuit Judges. Juan Gomez-Garcia, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals ( BIA ) order dismissing his appeal from an immigration judge s removal order. We have jurisdiction under 8 U.S.C. § 1252. We review de novo questions of law. Sandoval-Luna v. Mukasey, 526 F.3d 1243, * 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). 1246 (9th Cir. 2008) (per curiam). We grant in part and deny in part the petition for review and remand. In concluding that Gomez-Garcia was inadmissible under 8 U.S.C. § 1182(a)(9)(C)(i)(II), the BIA did not have the benefit of Duran Gonzales v. DHS, 712 F.3d 1271 (9th Cir. 2013) and Carrillo de Palacios v. Holder, 708 F.3d 1066 (9th Cir. 2013), in which the court set out the retroactivity test to be applied in such cases. See Duran Gonzales, 712 F.3d at 1275-78. We remand to the BIA to apply the retroactivity test in the first instance. See id. at 1278 (remanding for retroactivity analysis given the fact that the record has not been fully developed). Gomez-Garcia s motion to hold his case in abeyance pending a decision in Duran Gonzales v. DHS, 659 F.3d 930 (9th Cir. 2011) is denied as moot. The parties shall bear their own costs for this petition for review. PETITION FOR REVIEW GRANTED in part; DENIED in part; and REMANDED. 2 11-70016

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