Benito Estrada v. Eric H. Holder Jr.

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 22, 2011
• Docket: 08-74816
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION APR 22 2011

MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

BENITO ESTRADA, No. 08-74816

Petitioner, Agency No. A092-408-863

v. MEMORANDUM * ERIC H. HOLDER, Jr., Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted April 20, 2011 **

Before: RYMER, THOMAS, and PAEZ, Circuit Judges.

Benito Estrada, a native and citizen of Mexico, petitions for review of the

Board of Immigration Appeals’ (“BIA”) order sustaining the government’s appeal

from an immigration judge’s (“IJ”) decision. We have jurisdiction under 8 U.S.C.

§ 1252. We grant the petition for review and remand.

* 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). The BIA concluded that the IJ lacked jurisdiction to reopen proceedings

without the benefit of our decision in Reyes-Torres v. Holder, Nos. 08-74452 &

09-70214, 2011 WL 1312570 (9th Cir. April 7, 2011) (mandate pending), in which

we determined that 8 C.F.R. § 1003.2(d) did not apply to preclude a motion to

reopen filed after the petitioner had been removed. See Reyes-Torres, 2011 WL

1312570, at *2-*3 (citing Coyt v. Holder, 593 F.3d 902 (9th Cir. 2010)); see also

Reynoso-Cisneros v. Gonzales, 491 F.3d 1001, 1002 (9th Cir. 2007) (per curiam)

(treating departure bars to motions under 8 C.F.R. §§ 1003.2(d) and 1003.23(b)(1)

as substantively identical). We remand to the BIA in light of this intervening case

law.

PETITION FOR REVIEW GRANTED; REMANDED.

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