Park v. Mukasey

287 F. App'x 567

Opinion

MEMORANDUM

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Myong Hwa Park, a native and citizen of South Korea, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an immigration judge’s removal order. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review de novo questions of law, Fernandez-Ruiz v. Gonzales, 468 F.3d 1159, 1163 (9th Cir.2006), and we grant the petition for review and remand for further proceedings.

The BIA erred in concluding that Park is ineligible for § 212(c) relief under United States v. Velasco-Medina, 305 F.3d 839 (9th Cir.2002). Although Park’s conviction was not a deportable offense in 1989, we have held that Velasco-Medina does not apply to applicants convicted pri- or to the Antiterrorism and Effective Death Penalty Act of 1996. See United States v. Leon-Paz, 340 F.3d 1003, 1007 (9th Cir.2003) (distinguishing Velasco-Medina because Leon-Paz “could rely on the fact that he had a source of protection should his crime be declared an aggravated felony in the future”).

We do not consider the government’s contention that Park is nevertheless ineligible for § 212(c) relief because her conviction followed a plea of not guilty, as this ground was not relied on by the BIA. See Andia v. Ashcroft, 359 F.3d 1181, 1185 (9th Cir.2004) (per curiam) (declining to consider “arguments advanced by the INS which were not relied on by the BIA”). In light of our disposition, we need not address Park’s equal protection claim.

PETITION FOR REVIEW GRANTED; REMANDED.

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