Opinion
No. 09-70867.
Argued and Submitted September 15, 2010 San Francisco, California.
June 3, 2011.
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A076-728-302.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Victor Gonzalez Salazar petitions for review of a decision of the Board of Immigration Appeals ("BIA") denying his motion to reopen pursuant to 8 C.F.R. § 1003.2(d).
Since the BIA decided this case, we have issued two decisions that may have bearing on the issues presented: Reyes-Torres v. Holder, ___ F.3d ___, 2011 WL 1312570 (9th Cir. 2011) and Coytv. Holder, 593 F.3d 902 (9th Cir. 2010). Prior to oral argument in this case, the United States moved for an order remanding this petition to the BIA for reconsideration in light of Coyt. We denied the motion and heard argument. Having heard argument and having decided Reyes-Torres, we now believe the government's initial position requesting a remand is well-taken.
Therefore, we remand this petition to the BIA for its reconsideration in light of Reyes-Torres and Coyt.
REMANDED.
I conclude that there is no need to remand this case to the Board of Immigration Appeals (Board). Instead, for the reasons expressed in my dissent in Reyes-Torres v. Holder, ___ F.3d ___, 2011 WL 1312570, at *4 (9th Cir.), I believe that t he Board's interpretation of its departure rule as a jurisdictional bar is entitled to agency deference. Id. at *5; see also 8 C.F.R. § 1003.2(d) (stating that "[a]ny departure from the United States . . ., occurring after the filing of a motion to reopen or a motion to reconsider, shall constitute a withdrawal of such motion"). I would therefore apply the bar here and deny Gonzalez-Salazar's petition for review.
Our decision in Coyt v. Holder, 593 F.3d 902 (9th Cir. 2010), and for that matter the majority opinion in Reyes-Torres, are easily distinguishable. Unlike the petitioners in those cases, who were involuntarily deported, Gonzalez-Salazar made a volitional decision to leave the United States. Where an alien voluntarily departs, he is afforded certain benefits. See Dada v. Mukasey, 554 U.S. 1,21 (2008). In exchange, it is not unreasonable to expect the alien to simultaneously relinquish other rights, such as his statutory right to file a motion to reopen. See id. (holding that an alien has the "option either to abide by the terms" of a voluntary departure order "and receive the agreed-upon benefits . . . or, alternatively, to forgo those benefits and remain in United States to pursue an administrative motion").
Because Gonzalez-Salazar left t he United States on his own volition, apparently as a strategic decision to obtain the benefits of voluntary departure, it was not unreasonable for the Board to construe his departure as an implied forfeiture of the right to file a motion to reopen. See Marin-Rodriguez v. Holder, 612 F.3d 591, 593 (7th Cir. 2010) (explaining that "[i]f the Supreme Court sees no incompatibility between a statutory right to apply for something and an implied-withdrawal approach, it is hard to fault the Board for adopting a similar view"). Consistent with this reasoning, those circuits to address this issue have generally agreed that "an alien's voluntary departure from the [United States] result[s] in a forfeiture of the right to file a motion to reopen." See Zhang v. Holder, 617 F.3d 650, 660 (2d Cir. 2010) (internal quotation marks omitted); Toora v. Holder, 603 F.3d 282, 288 (5th Cir. 2010); Rosillo-Puga v. Holder, 580 F.3d 1147, 1159-60 (10th Cir. 2009); Mansour v. Gonzales, 470 F.3d 1194, 1198 (6th Cir. 2006); Navarro-Miranda v. Ashcroft, 330 F.3d 672, 676 (5th Cir. 2003).
I would follow these decisions and apply the departure bar to Gonzalezs-Salazar. I therefore dissent.