Victor Salazar v. Eric H. Holder, Jr.

FILED
NOT FOR PUBLICATION JUN 03 2011

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS

FOR THE NINTH CIRCUIT

VICTOR GONZALEZ SALAZAR, No. 09-70867

Petitioner, Agency No. A076-728-302

v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted September 15, 2010
San Francisco, California

Before: WALLACE and THOMAS, Circuit Judges, and MILLS, Senior District
Judge.**

Victor Gonzalez Salazar petitions for review of a decision of the Board of

Immigration Appeals ('BIA') denying his motion to reopen pursuant to 8 C.F.R. y

1003.2(d).

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Richard Mills, Senior District Judge for the U.S.
District Court for Central Illinois, Springfield, sitting by designation.
 Since the BIA decided this case, we have issued two decisions that may have

bearing on the issues presented: Reyes-Torres v. Holder, ÁÁ F.3d ÁÁ, 2011 WL

1312570 (9th Cir. 2011) and Coyt v. Holder, 593 F.3d 902 (9th Cir. 2010). Prior to

oral argument in this case, the United States moved for an order remanding this

petition to the BIA for reconsideration in light of Coyt. We denied the motion and

heard argument. Having heard argument and having decided Reyes-Torres, we

now believe the government's initial position requesting a remand is well-taµen.

Therefore, we remand this petition to the BIA for its reconsideration in light

of Reyes-Torres and Coyt.

REMANDED.

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 FILED
Gonzalez-Salazar v. Holder, No. 09-70867 JUN 03 2011

MOLLY C. DWYER, CLERK
WALLACE, Senior Circuit Judge, dissenting: U.S . CO U RT OF AP PE A LS

I conclude that there is no need to remand this case to the Board of

Immigration Appeals (Board). Instead, for the reasons expressed in my dissent in

Reyes-Torres v. Holder, -- F.3d --, 2011 WL 1312570, at *4 (9th Cir.), I believe

that the Board's interpretation of its departure rule as a jurisdictional bar is entitled

to agency deference. Id. at *5; see also 8 C.F.R. y 1003.2(d) (stating that '[a]ny

departure from the United States . . ., occurring after the filing of a motion to

reopen or a motion to reconsider, shall constitute a withdrawal of such motion'). I

would therefore apply the bar here and deny Gonzalez-Salazar's petition for

review.

Our decision in Coyt v. Holder, 593 F.3d 902 (9th Cir. 2010), and for that

matter the majority opinion in Reyes-Torres, are easily distinguishable. Unliµe the

petitioners in those cases, who were involuntarily deported, Gonzalez-Salazar

made a volitional decision to leave the United States. Where an alien voluntarily

departs, he is afforded certain benefits. See Dada v. Muµasey, 554 U.S. 1, 21

(2008). In exchange, it is not unreasonable to expect the alien to simultaneously

relinquish other rights, such as his statutory right to file a motion to reopen. See id.

(holding that an alien has the 'option either to abide by the terms' of a voluntary
departure order 'and receive the agreed-upon benefits . . . or, alternatively, to forgo

those benefits and remain in United States to pursue an administrative motion').

Because Gonzalez-Salazar left the United States on his own volition,

apparently as a strategic decision to obtain the benefits of voluntary departure, it

was not unreasonable for the Board to construe his departure as an implied

forfeiture of the right to file a motion to reopen. See Marin-Rodriguez v. Holder,

612 F.3d 591, 593 (7th Cir. 2010) (explaining that '[i]f the Supreme Court sees no

incompatibility between a statutory right to apply for something and an

implied-withdrawal approach, it is hard to fault the Board for adopting a similar

view'). Consistent with this reasoning, those circuits to address this issue have

generally agreed that 'an alien's voluntary departure from the [United States]

result[s] in a forfeiture of the right to file a motion to reopen.' See Zhang v.

Holder, 617 F.3d 650, 660 (2d Cir. 2010) (internal quotation marµs omitted);

Toora v. Holder, 603 F.3d 282, 288 (5th Cir. 2010); Rosillo-Puga v. Holder, 580

F.3d 1147, 1159-60 (10th Cir. 2009); Mansour v. Gonzales, 470 F.3d 1194, 1198

(6th Cir. 2006); Navarro-Miranda v. Ashcroft, 330 F.3d 672, 676 (5th Cir. 2003).

I would follow these decisions and apply the departure bar to Gonzalez-

Salazar. I therefore dissent.

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