FILED
NOT FOR PUBLICATION APR 26 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
CESAR JULIO MEDINA CORADO and No. 08-73751
ANA LUISA MEDINA,
Agency Nos. A072-400-003
Petitioners, A075-306-757
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 5, 2011 **
Before: B. FLETCHER, CLIFTON, and BEA, Circuit Judges.
Cesar Julio Medina Corado, a native and citizen of Guatemala, and Ana
Luisa Medina, a native and citizen of Mexico, petition for review of the Board of
Immigration Appeals’ order dismissing their appeal from an immigration judge’s
(“IJ”) decision denying their applications for cancellation of removal. We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction under 8 U.S.C. § 1252. We review the agency’s continuous physical
presence determination for substantial evidence. Ibarra-Flores v. Gonzales, 439
F.3d 614, 618 (9th Cir. 2006). We grant the petition for review and remand.
An intervening change in the law requires us to remand on the issue of Ana
Luisa Medina’s continuous physical presence. In Tapia v. Gonzales, 430 F.3d 997,
998 (9th Cir. 2005), we concluded “that being turned away at the border by
immigration officials does not have the same effect as an administrative voluntary
departure and does not itself interrupt the accrual of continuous physical presence.”
It appears from the record that Medina’s departure in 1996 was a border
turnaround or an uninformed voluntary departure, as opposed to a knowing
acceptance of administrative voluntary departure. See id. at 1004; Cf. Gutierrez v.
Mukasey, 521 F.3d 1114, 1117-8 (9th Cir. 2008) (petitioner’s testimony that he had
the opportunity to go before an IJ and chose to depart instead is sufficient to
establish presence-breaking voluntary departure). We therefore grant the petition
for review and remand for further proceedings.
In light of this disposition, we need not reach petitioners’ remaining
contentions.
PETITION FOR REVIEW GRANTED; REMANDED.
2 08-73751