Martinez v. Immigration & Naturalization Service

7 F. App'x 605

Opinion

MEMORANDUM²

Uriel Martinez, a native and citizen of Mexico, petitions pro se for review of a final decision of the Board of Immigration Appeals (“BIA”) dismissing his appeal of an immigration judge’s denial of his application for suspension of deportation. Pursuant to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), the transitional rules apply, see Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997), and we therefore have jurisdiction under 8 U.S.C. § 1105a(a), as amended by IIRIRA § 309(c), see Avetovar-Elisseva v. INS, 213 F.3d 1192, 1195 n. 4 (9th Cir.2000). We grant the petition for review.

Because the BIA did not apply the correct legal standard in determining the length of Martinez’s continuous physical presence, substantial evidence does not support the BIA’s summary conclusion that Martinez failed to meet the continuous physical presence requirement for suspension of deportation. We grant the petition for review and remand for reconsideration of Martinez’s eligibility for suspension of deportation. On remand, the BIA should provide Martinez the opportunity to support his contention regarding the length of his continuous physical presence.

We do not consider Petitioner’s eligibility, if any, for relief under the class action pending in the district court in accordance with Barahonar-Gomez v. Reno, 167 F.3d 1228 (9th Cir.1999), supplemental opinion, 236 F.3d 1115 (9th Cir.2001). Our resolution of this case does not affect any interim or permanent relief awarded to members of the class certified in Barahonar-Gomez.

PETITION FOR REVIEW GRANTED.

2 . This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.