Arellano

FILED

NOT FOR PUBLICATION NOV 13 2012

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

GONZALO PINO ARELLANO, No. 08-70554

Petitioner, Agency No. A078-903-932

v.

MEMORANDUM*

ERIC H. HOLDER, JR., Attorney General

Respondent.

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.

* 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. 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…

MEMORANDUM **

The IJ abused his discretion by concluding that Arellano abandoned his application because it was incomplete.

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 *819 (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…

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…