Ayvazian v. Mukasey

271 F. App'x 628

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 25, 2008
• Docket: No. 05-75895
• Status: Published

Opinion

MEMORANDUM

**

Arus Ayvazian, a native of Iran and citizen of Armenia, petitions for review of the Board of Immigration Appeals’ (“BIA”) September 15, 2005 order dismissing her appeal from an immigration judge’s decision denying her application for adjustment of status. We have jurisdiction under 8 U.S.C. § 1252. We review de novo questions of law. Hernandez-Gil v. Gonzales, 476 F.3d 803, 804 n. 1 (9th Cir.2007). We grant the petition for review and remand for further proceedings.

The BIA determined that Ayvazian was statutorily barred from adjusting her status because she had failed to depart voluntarily. See 8 U.S.C. § 1229c(d)(l)(B) (alien who fails to voluntarily depart shall be ineligible to adjust status for a period of 10 years). However, the BIA did not have the benefit of our decision in Barroso v. Gonzales, 429 F.3d 1195, 1205-07 (9th Cir. 2005) (the timely filing of a motion to reopen or reconsider within the period of voluntary departure automatically tolls that period). Ayvazian filed her motion to reopen to apply for adjustment of status on April 24, 2003, within the 30 days of voluntary departure granted by the BIA on April 2, 2003. Ayvazian was not statutorily barred from adjusting her status.

PETITION FOR REVIEW GRANTED; REMANDED.

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