NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
JUN 17 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JOSE VARGAS-SAAVEDRA, No. 11-71259
Petitioner, Agency No. A078-752-344
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted June 10, 2016
Seattle, Washington
Before: EBEL,** PAEZ, and BYBEE, Circuit Judges.
Jose Vargas-Saavedra petitions for review of the Board of Immigration
Appeals’ order dismissing his appeal from an immigration judge’s decision
denying adjustment of status. We have jurisdiction under 8 U.S.C. § 1252. We
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable David M. Ebel, Senior Circuit Judge for the U.S.
Court of Appeals for the Tenth Circuit, sitting by designation.
review de novo questions of law. Garfias-Rodriguez v. Holder, 702 F.3d 504, 512
n.6 (9th Cir. 2012) (en banc). We grant Vargas’s petition for review and remand.
The BIA erred in applying In re Torres-Garcia, 23 I. & N. Dec. 866 (BIA
2006), against Vargas retroactively. See Acosta-Olivarria v. Lynch, 799 F.3d
1271, 1275–77 (9th Cir. 2015). Like the petitioner in Acosta-Olivarria, Vargas
applied for adjustment of status and paid fees in the window between our decision
permitting petitioners like him to seek adjustment of status, see Perez-Gonzales v.
Ashcroft, 379 F.3d 783, 789 (9th Cir. 2004), and the BIA’s first decision calling
this line of cases into question, see Torres-Garcia, 23 I. & N. Dec. 866. It was
thus reasonable for Vargas to rely on our decision in Perez. See Acosta-Olivarria,
799 F.3d at 1275–77.
There is no significant factual difference between Vargas’s situation and the
one presented in Acosta-Olivarria; we thus conclude that the BIA’s holding in
Torres-Garcia does not apply retroactively to bar Vargas’s application for
adjustment. We remand to the BIA to adjudicate Vargas’s application for
adjustment of status.
PETITION FOR REVIEW GRANTED; REMANDED.
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