Gomez v. Gonzales, case no. 06-70941 (9th Cir. August 22, 2007) demonstrates how the abuse of discretion standard of review can be undermined by a weak record.  The weak record in this case results in remand instead of a decision on the merits.

The Board of Immigration Appeals denied a motion by the Garcias for leave to file a late brief.  The grant or denial of such a motion is within the BIA’s discretion.

Here, however, the BIA’s order offered no “reasoned explanation” for its denial of the motion:

Denying the Garcias’ motion, the BIA conclusorily reasoned: “We find the reason stated by the respondents insufficient for us to accept the untimely brief in our exercise of discretion.”

This left the Ninth Circuit without any means to conduct a meaningful review for abuse of discretion:

We are similarly “unable to determine from the BIA’s conclusory statement whether it abused its discretion by refusing to accept [the Garcias’] late brief.”  [Citation.]  We therefore remand the petition to the BIA.

Because the BIA could reach a different conclusion on its hardship determination if it considers the Garcias’ brief on remand, we do not reach the Garcias’ other legal or constitutional claims.

Remanded.