Qaiser v. Gonzales

131 F. App'x 530

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 13, 2005
• Docket: No. 03-72962; Agency Nos. A70-778-171, A70-778-172, A70-778-173, A70-778-174
• Status: Published

Opinion

MEMORANDUM

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Waseem Qaiser, his wife, Javaria Waseem, and their children, Hamza and Maha Qaiser, natives and citizens of Pakistan, petition for review from the decision of the Board of Immigration Appeals (“BIA”) denying their motion to reopen because they failed to depart within the thirty-day voluntary departure period. Because the transitional rules apply, Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997), we have jurisdiction pursuant to former 8 U.S.C. § 1105a(a). We review for abuse of discretion the denial of a motion to reopen, Shaar v. INS, 141 F.3d 953, 955 (9th Cir. 1998), and we grant the petition for review.

The BIA abused its discretion by denying petitioners’ motion to reopen for failure to depart within the voluntary departure period, where petitioners requested an extension of the voluntary departure period in their motion to reopen. Cf Shaar, 141 F.3d at 957 (holding no abuse of discretion for BIA to deny petitioners’ motion to reopen on the ground that they did not depart within voluntary departure period because, inter alia, they did not seek extension of voluntary departure period).

Furthermore, the immigration judge’s (“IJ”) oral notice of the consequences of failing to depart within the voluntary departure period was inadequate, because it did not specifically enumerate the forms of relief that would be lost if petitioners faded to depart. See 8 U.S.C. § 1252(b) (repealed); see Ordonez v. INS, 345 F.3d 777, 783-84 (9th Cir.2003). The IJ’s inadequate oral notice was not rectified by referencing the written notice. See id. at 784 (rejecting government’s contention that cumulative forms of written and oral notice fulfilled IJ’s duty to adequately inform petitioner of the consequences of failing to depart).

PETITION FOR REVIEW GRANTED; REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.