U.S. Court of Appeals for the Ninth Circuit, 2007

Chavez-Regalado v. Gonzales

U.S. Court of Appeals for the Ninth Circuit · Decided August 14, 2007 · Berzon, Ikuta, Singleton

235 F. App'x 547

Counsel

J. Jack Artz, Esq., Norwalk, CA, for Petitioner., CAC-Distriet Counsel, Esq., Office of the District Counsel, Department of Homeland Security, Los Angeles, CA, Ronald E. Lefevre, Chief Counsel, Office of the District Counsel, Department of Homeland Security, San Francisco, CA, Richard M. Evans, Esq., Nancy E. Friedman, Esq., DOJ — U.S. Department of Justice, Civil Div./Office of Immigration Lit., Carol A. Barthel, DOJ — U.S. Department of Justice, Tax Division, Washington, DC, for Respondent.

Opinion of the Court

MEMORANDUM ***

*548Jose Reyes Chavez-Regalado petitions this court for review of the Board of Immigration Appeals’ (“BIA”) decision which (through a lengthy chain of earlier decisions) resulted in a denial of Chavez-Regalado’s request to reopen his deportation proceedings.

The BIA erred in affirming the IJ’s holding that Chavez-Regalado’s motion to reopen was barred by 8 CFR § 3.23(b) [now 8 CFR § 1003.23(b)(1) ] because Chavez-Regalado had departed the United States before filing his motion to reopen. Section 1003.23(b)(1) applies only to a person who departs the United States while the person is the subject of deportation proceedings. See Lin v. Gonzales, 473 F.3d 979, 982 (9th Cir. 2007). Because Chavez-Regalado was no longer subject to deportation proceedings when he departed the United States, § 1003.23(b)(1) did not preclude the IJ’s consideration of his motion to reopen. Likewise, the BIA erred in holding that Chavez-Regalado was not eligible for relief under the terms of 8 U.S.C. § 1231(a)(5). There was no evidence in the administrative record that the government has taken the steps outlined in 8 CFR § 241.8 such that the bar would apply. See Lin, 473 F.3d at 982-83.

Petition Granted.

xhis disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.