Nevarez v. Holder (9th Cir. July 8, 2009)

REINHARDT, Noonan, McKeown

The BIA denied cancellation of removal to petitioners, husband and wife, in 2005 and granted voluntary departure.  They then filed a PFR and later filed an untimely Motion to Reopen, which the BIA denied and did not consider on the merits (they petitioned for review of the denied MTR also, and the CtApp consolidated the PFR’s).  The CtApp remanded this first PFR for reconsideration of the time given for voluntary departure.  On remand, the BIA affirmed the denial of relief and again granted VD.  Petitioners filed another PFR and another MTR, the latter of which was timely.  The BIA denied the second MTR as numerically barred, and petitioners again sought CtApp review of both the order and the MTR.

Issues: (1) whether the BIA properly denied the second MTR as numerically barred, where it did not consider the first MTR on the merits and (2) whether the second MTR was properly denied on the ground that petitioners were ineligible for immigration relief because they overstayed their VD grant.

On issue (1), the CtApp found that the BIA failed to address petitioners arguments that the second MTR was not subject to the numerical bar because it had not been addressed on its merits.  Applying the ordinary remand rule, the CtApp remanded to the agency for an initial determination on this issue.

On issue (2):  When petitioners sought CtApp review in 2007, applicable 9th Circuit precedent automatically stayed their VD period.  In 2008, Dada came down, which repudiated the Ninth Circuit’s automatic stay provision, but required that aliens granted VD be given an opportunity to relinquish this benefit and file a Motion to Reopen.  Dada did not, however, address its retroactive applicability to aliens who did not have such an opportunity and who relied on appellate precedent in filing PFR’s while under VD orders. 

Regulations promulgated after Dada also do not address such a factual scenario.  The government argued that the BIA had no authority to construe petitioners’ MTR as revoking their acceptance of VD, and argued that the overstay penalties must apply.  The CtApp noted that this would contravene the spirit and intent of Dada by depriving petitioners by depriving petitioners the opportunity to file an MTR and by penalizing their reliance on binding precedent.  Applying the ordinary remand rule, the CtApp remanded to the agency for an initial determination on this issue.

Read opinion here. : http://www.ca9.uscourts.gov/datastore/opinions/2009/07/08/07-74271.pdf