Chavez-Regalado v. Gonzales

MEMORANDUM *** *548 Jose Reyes Chavez-Regalado petitions this court for review of the Board of Immigration Appeals’ (“BIA”) decision which (through a lengthy chain of earlier decisions) resulted in a denial of Chavez-Regalado’s request to reopen his deportation proceedings. The BIA erred in affirming the IJ’s holding that Chavez-Regalado’s motion to reopen was barred by 8 CFR § 3.23 (b) [now 8 CFR § 1003.23 (b)(1) ] because Chavez-Regalado had departed the United States before filing his motion to reopen. Section 1003.23(b)(1) applies only to a person who departs the United States while the person is the subject of deportation proceedings. See Lin v. Gonzales, 473 F.3d 979, 982 (9th Cir.2007). Because Chavez-Regalado was no longer subject to deportation proceedings when he departed the United States, § 1003.23(b)(1) did not preclude the IJ’s consideration of his motion to reopen. Likewise, the BIA erred in holding that Chavez-Regalado was not eligible for relief under the terms of 8 U.S.C. § 1231 (a)(5). There was no evidence in the administrative record that the government has taken the steps outlined in 8 CFR § 241.8 such that the bar would apply. See Lin, 473 F.3d at 982-83 . Petition Granted. xhis disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.