Del Rosario v. Mukasey

MEMORANDUM ** Diane Parducho Del Rosario, a native and citizen of the Philippines, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an immigration judge’s (“IJ”) decision denying her motion to reopen. We have jurisdiction under 8 U.S.C. § 1252 . We grant the petition for review and remand. Del Rosario filed a motion to reopen to apply for adjustment of status based on her marriage to a U.S. citizen. The government opposed the motion on the grounds that Del Rosario overstayed a grant of voluntary departure and did not present clear' and convincing evidence that her marriage was bona fide. In denying the motion to reopen, the IJ relied on Del Rosario’s failure to comply with the order of voluntary departure. In upholding the IJ’s decision, the BIA pointed to Del Rosario’s failure to argue the bona fides of her marriage on appeal. Because the IJ’s order did not put Del Rosario on notice that the bona fides of her marriage would be at issue on appeal, we remand to the BIA for further proceedings. PETITION FOR REVIEW GRANTED; REMANDED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.