Ramirez-Llanos v. Immigration & Naturalization Service

10 F. App'x 458

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 26, 2001
• Docket: No. 99-70976; INS Nos. A72-112-459 A72-112-460
• Status: Published

Opinion

MEMORANDUM²

Hedilberto Ramirez-Llanos and Maria Ramirez-Zamora, natives and citizens of Mexico, petition pro se for review of a final decision of the Board of Immigration Appeals (“BIA”) dismissing their appeal of an immigration judge’s (“IJ”) denial of their motion to reopen to apply 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 Avetova-Elisseva v. INS, 213 F.3d 1192, 1195 n. 4 (9th Cir.2000). We grant the petition for review.

The IJ’s premature application of the stop-time rule, see Astrero v. INS, 104 F.3d 264, 266 (9th Cir.1996), resulted in the IJ’s conclusion that petitioners could not meet the continuous physical presence requirement for eligibility for suspension of deportation. Because the IJ denied petitioners’ motion to reopen based solely on this conclusion, and the BIA failed to correct the IJ’s procedural error, we grant the petition for review. We remand to the BIA with instructions to remand to the IJ to reconsider the motion to reopen in light of Guadalupe-Cruz v. INS, 240 F.3d 1209, 1211, 1212 (9th Cir.2001).

We do not consider petitioners’ eligibility, if any, for relief under the class action pending in the district court in accordance with Barahona-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 Barahona-Gomez.

PETITION FOR REVIEW GRANTED. REVERSED and REMANDED.

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.