Yewhalashet ABEBE, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.

No. 05-76201.United States Court of Appeals, Ninth Circuit.Argued and Submitted December 4, 2006.
Filed July 9, 2007.

Page 199

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Robert B. Jobe, Esq., Law Offices of Robert B. Jobe, San Francisco, CA, for Petitioner.

Ronald E. Lefevre, Chief Counsel, Office of the District Counsel, Department of Homeland Security, San Francisco, CA, District Counsel, Office of the District Chief Counsel U.S., Department of Homeland Security, Phoenix, AZ, John C. Cunningham, Esq., U.S. Department of Justice Civil Div/Office of Immigration Lit., Washington, DC, for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A26-810-941.

Before: D.W. NELSON, COWEN,[*] and BERZON, Circuit Judges.

[*] The Honorable Robert E. Cowen, Senior United States Circuit Judge for the Third Circuit, sitting by designation.


[**] This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

Petitioner Yewhalashet Abebe faces removal for a 1992 conviction involving the sexual abuse of a minor — an aggravated felony under Immigration and Nationality Act (“INA”) § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A). He challenges the denial of former § 212(c) relief and an Immigration Judge’s (“IJ”) determination that he was convicted of a “particularly serious crime,” rendering him ineligible for withholding of removal. INA § 241(b)(3)(B)(ii), 8 U.S.C. 1231(b)(3)(B)(ii). In a separate opinion filed concurrently with this memorandum, we deny the petition insofar as it challenges the denial of § 212(c) relief. In this memorandum, we remand to the BIA for a determination on the merits of the withholding of removal claim.

Abebe’s notice of appeal to the BIA sufficiently raised the question of whether the IJ applied the correct legal standard in making the “particularly serious crime” determination. Because the Board refused to address this issue, we remand for an initial determination on the merits.