Garcia De Ruiz v. Holder ( 2012 )

FILED
NOT FOR PUBLICATION MAR 19 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
OLGA CLARISSA GARCIA DE RUIZ, No. 06-71370
Petitioner, Agency No. A076-635-742
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 5, 2012
Pasadena, California
Before: FARRIS, CLIFTON, and IKUTA, Circuit Judges.
Olga Clarissa Garcia de Ruiz petitions this court for review of the decision
of the Board of Immigration Appeals affirming the Immigration Judge’s denial of
her motion to reopen her deportation proceedings. The Immigration Judge denied
the motion on three grounds. First, the evidence of U.S. citizenship Garcia sought
to submit in the reopened proceedings, contrary to the requirement of 8 C.F.R.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
§ 1003.23(b)(3), was available and could have been discovered or presented at the
former hearing. Second, Garcia’s evidence of U.S. citizenship was unreliable and
was rebutted by the government’s evidence that Garcia was born in Mexico. Third,
8 C.F.R. § 1003.23(b)(1) jurisdictionally bars an immigration court from reopening
removal proceedings “where th[e] alien departed the United States pursuant to a
final administrative order.” See § 1003.23(b)(1) (“A motion to reopen or to
reconsider shall not be made by or on behalf of a person who is the subject of
removal, deportation, or exclusion proceedings subsequent to his or her departure
from the United States.”).
The Board of Immigration Appeals relied solely on the third ground in
affirming the Immigration Judge’s decision. Thus, our review is limited to that
ground for affirmance. See Andia v. Ashcroft, 359 F.3d 1181, 1184 (9th Cir. 2004)
(“In reviewing the decision of the B[oard], we consider only the grounds relied
upon by that agency.”). We have jurisdiction under 8 U.S.C. § 1252(a)(1). See Lin
v. Gonzales, 473 F.3d 979, 981 (9th Cir. 2007). We review the legal question of an
agency’s jurisdiction de novo. Id.After the Board issued its order, we decided Lin v. Gonzales. See id. We held
in Lin that 8 C.F.R. § 1003.23(b)(1) “d[oes] not preclude jurisdiction over motions
to reopen filed by petitioners, like [Garcia], who [were] lawfully removed after the
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completion of immigration proceedings, and only bar[s] motions filed by an
individual ‘who departs the United States while he or she is the subject of removal
. . . proceedings.’” Reynoso-Cisneros v. Gonzales, 491 F.3d 1001, 1002 (9th Cir.
2007) (per curiam) (quoting Lin, 473 F.3d at 982) (first four alterations added)
(emphasis in Lin). We recently reaffirmed, in construing the substantially identical
regulation 8 C.F.R. § 1003.2(d), that the physical removal of a petitioner by the
United States does not preclude the petitioner from pursuing a motion to reopen.
See Reyes-Torres v. Holder, 645 F.3d 1073, 1076-77 (9th Cir. 2011). The
government recognizes that Lin invalidated the Board’s ground for affirming the
denial of Garcia’s motion to reopen—that the Immigration Judge lacked
jurisdiction. Since we only review the ground relied upon by the Board, we must
grant Garcia’s petition and remand to the Board for further proceedings.
Petition for review GRANTED; REMANDED.
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