FILED
NOT FOR PUBLICATION MAY 05 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ISIDRO ESPINOZA HERNANDEZ and No. 07-71595
ESTELA AVILA ESPINOZA,
Agency Nos. A075-481-755
Petitioners, A075-481-756
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 20, 2011 **
Before: RYMER, THOMAS, and PAEZ, Circuit Judges.
Isidro Espinoza Hernandez and Estela Avila Espinoza, natives and citizens
of Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”) order
dismissing their appeal from an immigration judge’s (“IJ”) removal order. We
*
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).
have jurisdiction under 8 U.S.C. § 1252. We grant the petition for review and
remand.
The agency declined to entertain petitioners’ request to consider additional
evidence in support of their cancellation of removal applications without the
benefit of our decision in Fernandes v. Holder, 619 F.3d 1069, 1074 (9th Cir.
2010) (“[T]he IJ’s jurisdiction on remand from the BIA is limited only when the
BIA expressly retains jurisdiction and qualifies or limits the scope of the remand to
a specific purpose. An articulated purpose for the remand, without any express
limit on scope, is not sufficient to limit the remand such that it forecloses
consideration of other new claims or motions that the IJ deems appropriate or that
are presented in accordance with relevant regulations.”). See also Matter of M-D-,
24 I. & N. Dec. 138, 141-42 (BIA 2007) (an IJ has authority to consider additional
evidence on remand “if it is material, was not previously available, and could not
have been discovered or presented at the former hearing”). We therefore remand
to allow the agency to reconsider petitioners’ request to present additional evidence
in light of the intervening case law.
In light of our disposition, we do not address petitioners’ remaining
contentions.
PETITION FOR REVIEW GRANTED; REMANDED.
2 07-71595