Villatoro v. Immigration & Naturalization Service

MEMORANDUM²

Luis Fernando Villatoro, a native and citizen of Guatemala, petitions pro se for review of a final decision of the Board of Immigration Appeals (“BIA”) dismissing his appeal of an immigration judge’s (“IJ”) denial of his application for suspension of deportation. Pursuant to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), the transitional rules apply, see Kalaiv 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 petitioner had not met his continuous physical presence requirement for eligibility for suspension of deportation. Because the IJ denied petitioner’s application 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 consider the application for suspension of deportation under the law as it existed on March 19, 1997, and to consider the current facts and petitioner’s current circumstances. See Guadalupe-Cruz v. INS, 240 F.3d 1209, 1211-12 (9th Cir.2001).

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.