Jose Vargas-Saavedra v. Loretta E. Lynch

Ninth Circuit

Jose Vargas-Saavedra v. Loretta E. Lynch

652 F. App'x 555

CourtCourt of Appeals for the Ninth Circuit

DecidedJune 17, 2016

Docket11-71259

StatusUnpublished

This text of 652 F. App'x 555 (Jose Vargas-Saavedra v. Loretta E. Lynch) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Jose Vargas-Saavedra v. Loretta E. Lynch, 652 F. App'x 555 (9th Cir. 2016).

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Opinion

MEMORANDUM **

Jose Várgas-Saavedra petitions for -review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s decision denying adjustment of status. We have jurisdiction under 8 U.S.C. § 1252. We review de novo questions of law. Garfias-Rodriguez v. Holder, 702 F.3d 504, 512 n.6 (9th Cir. 2012) (en banc). We grant Vargas’s petition for review and remand.

The BIA erred in applying In re Torres-Garcia, 23 I. & N. Dec. 866 (BIA 2006), against Vargas retroactively. See Acosta-Olivarria v. Lynch, 799 F.3d 1271, 1275-77 (9th Cir. 2015). Like the petitioner in Acos-tar-Olivarria, Vargas applied for adjustment of status and paid fees in the window between our decision permitting petitioners like him to seek adjustment of status, see Perez-Gonzalez v. Ashcroft, 379 F.3d 783, 789 (9th Cir. 2004), and the BIA’s first decision calling this line of cases into question, see Torres-Garcia, 23 I. & N. Dec. 866. It was thus reasonable for Vargas to rely on our decision in Perez. See Acosta-Olivarria, 799 F.3d at 1275-77.

There is no significant factual difference between Vargas’s situation and the one presented in Acosta-Olivarria; we thus conclude that the BIA’s holding in Torres-Garcia does not apply retroactively to bar Vargas’s application for adjustment. We remand to the BIA to adjudicate Vargas’s application for adjustment of 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.

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MEMORANDUM **

Jose Várgas-Saavedra petitions for -review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s decision denying adjustment of status. We have jurisdiction under 8 U.S.C. § 1252. We review de novo questions of law. Garfias-Rodriguez v. Holder, 702 F.3d 504, 512 n.6 (9th Cir. 2012) (en banc). We grant Vargas’s petition for review and remand.

The BIA erred in applying In re Torres-Garcia, 23 I. & N. Dec. 866 (BIA 2006), against Vargas retroactively. See Acosta-Olivarria v. Lynch, 799 F.3d 1271, 1275-77 (9th Cir. 2015). Like the petitioner in Acos-tar-Olivarria, Vargas applied for adjustment of status and paid fees in the window between our decision permitting petitioners like him to seek adjustment of status, see Perez-Gonzalez v. Ashcroft, 379 F.3d 783, 789 (9th Cir. 2004), and the BIA’s first decision calling this line of cases into question, see Torres-Garcia, 23 I. & N. Dec. 866. It was thus reasonable for Vargas to rely on our decision in Perez. See Acosta-Olivarria, 799 F.3d at 1275-77.

There is no significant factual difference between Vargas’s situation and the one presented in Acosta-Olivarria; we thus conclude that the BIA’s holding in Torres-Garcia does not apply retroactively to bar Vargas’s application for adjustment. We remand to the BIA to adjudicate Vargas’s application for adjustment of 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.

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