FILED
NOT FOR PUBLICATION DEC 10 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JULIO ROBERT PEREZ; ANA MARIA No. 05-74384
ZAMORA,
Agency Nos. A074-817-490
Petitioners, A079-534-787
v.
MEMORANDUM *
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 8, 2009 **
San Francisco, California
Before: TASHIMA, GRABER, and BYBEE, Circuit Judges.
Julio Robert Perez, a native and citizen of Guatemala, and his wife, Ana
Maria Zamora, a native and citizen of Mexico, petition for review of the Board of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
Immigration Appeals’ order denying their motion to reopen. We grant the petition
for review and remand for further proceedings.
The BIA failed to consider petitioners’ contention that because they failed to
post the voluntary bond required by 8 U.S.C. § 1229c(b)(3), they are not subject to
the penalties of § 1229c(d)(1). See Sagaydak v. Gonzales, 405 F.3d 1035, 1040
(9th Cir. 2005) (“[T]he BIA [is] not free to ignore arguments raised by a
petitioner.”). Moreover, although the BIA earlier affirmed and adopted an
immigration judge’s decision detailing multiple reasons for denying petitioners’
application for relief from removal, the BIA cited only 8 U.S.C. § 1229c(b)(3) in
denying petitioners’ motion to reopen. See Navas v. INS, 217 F.3d 646, 658 n.16
(9th Cir. 2000) (“[T]his court cannot affirm the BIA on a ground upon which it did
not rely.”).
We therefore remand to the BIA to reconsider petitioners’ motion to reopen,
noting the BIA’s intervening case law. See In re Diaz-Ruacho, 24 I. & N. Dec. 47,
47 (B.I.A. 2006) (“[A]n alien who fails to meet the voluntary departure bond
requirement is not subject to the penalties of [8 U.S.C. § 1229c(d)(1)].”); see
generally INS v. Orlando Ventura, 537 U.S. 12, 16-18 (2002) (per curiam).
PETITION FOR REVIEW GRANTED; REMANDED.
-2-