U.S. Court of Appeals for the Ninth Circuit, 2006

Garcia-Herrera v. Gonzales

U.S. Court of Appeals for the Ninth Circuit · Decided February 21, 2006 · Bybee, Fernandez, Rymer

168 F. App'x 762

Counsel

Lydia Janeth Garcia-Herrera, Bakersfield, CA, pro se., Regional Counsel, Western Region Immigration & Naturalization Service, Laguna Niguel, CA, Ronald E. Lefevre, Chief Legal Officer, Office of the District Counsel Department Of Homeland Security, San Francisco, CA, Papú Sandhu, M. Jocelyn Wright, Esq., Daniel E. Goldman, Esq., Aviva Poczter, DOJ-U.S. Department of Justice Civil Div./Office of Immigration Lit., Washington, DC, for Respondent.

Opinion of the Court

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 *763grant 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.

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