Benito Estrada v. Eric H. Holder Jr. ( 2011 )

FILED
NOT FOR PUBLICATION APR 22 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
BENITO ESTRADA, No. 08-74816
Petitioner, Agency No. A092-408-863
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 20, 2011 **
Before: RYMER, THOMAS, and PAEZ, Circuit Judges.
Benito Estrada, a native and citizen of Mexico, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order sustaining the government’s appeal
from an immigration judge’s (“IJ”) decision. We have jurisdiction under 8 U.S.C.
§ 1252. We grant the petition for review and remand.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
The BIA concluded that the IJ lacked jurisdiction to reopen proceedings
without the benefit of our decision in Reyes-Torres v. Holder, Nos. 08-74452 &
09-70214, 2011 WL 1312570 (9th Cir. April 7, 2011) (mandate pending), in which
we determined that 8 C.F.R. § 1003.2(d) did not apply to preclude a motion to
reopen filed after the petitioner had been removed. See Reyes-Torres, 2011 WL
1312570, at *2-*3 (citing Coyt v. Holder, 593 F.3d 902 (9th Cir. 2010)); see also
Reynoso-Cisneros v. Gonzales, 491 F.3d 1001, 1002 (9th Cir. 2007) (per curiam)
(treating departure bars to motions under 8 C.F.R. §§ 1003.2(d) and 1003.23(b)(1)
as substantively identical). We remand to the BIA in light of this intervening case
law.
PETITION FOR REVIEW GRANTED; REMANDED.
2 08-74816