Garcia-Herrera v. Gonzales , 168 F. App'x 762 ( 2006 )

MEMORANDUM ^**

Lydia Janeth Garcia-Herrera, a native and citizen of Mexico, petitions for review of an order of the Board of Immigration Appeals (“BIA”) denying her motion to reopen. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review the denial of a motion to reopen for abuse of discretion, Barroso v. Gonzales, 429 F.3d 1195, 1200 (9th Cir.2005), and we grant the petition for review.

Garcia-Herrera filed a timely motion to reopen within her voluntary departure period. The BIA denied the motion to reopen solely on the ground that Garcia-Herrera failed to depart within her voluntary departure period. This court recently held that a timely-filed motion to reopen automatically tolls the voluntary departure period. See id. at 1205. Accordingly, we grant the petition for review and remand for the BIA to consider the merits of Garcia-Herrera’s motion to reopen. See INS v. Ventura, 537 U.S. 12, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam).

PETITION FOR REVIEW GRANTED.

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.