Celso Hernandez-Aguirre v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION DEC 17 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CELSO HERNANDEZ-AGUIRRE, No. 12-73578
Petitioner, Agency No. A092-430-689
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 9, 2014**
Before: WALLACE, LEAVY, and BYBEE, Circuit Judges.
Celso Hernandez-Aguirre, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s decision denying his application for cancellation of
*
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).
removal. We have jurisdiction under 8 U.S.C. § 1252. We grant the petition for
review and remand.
Hernandez-Aguirre contends that there is no rationale for concluding that his
voluntary return to Mexico terminated his accrual of continuous physical presence,
where he had already accrued ten years of continuous physical presence at the time
he accepted voluntary return. Because Hernandez-Aguirre raised this contention to
the BIA, and the BIA did not consider it, we remand to the agency to consider in
the first instance whether a voluntary return interrupts an alien’s accrual of
continuous physical presence where an alien has already accrued ten years of
continuous presence at the time he accepts voluntary return. Coronado v. Holder,
759 F.3d 977, 987 (9th Cir. 2014) (under the ordinary remand rule, we do not
decide a claim the agency has not addressed, but remand the claim to the agency to
consider in the first instance).
PETITION FOR REVIEW GRANTED; REMANDED.
2 12-73578