FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HERMINIO NEVAREZ NEVAREZ; 

ARACELY Y. NEVAREZ, No. 07-74271

Petitioners, Agency Nos.

v.  A079-601-023

A079-601-024 ERIC H. HOLDER JR., Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

April 15, 2009—San Francisco, California

Filed July 8, 2009

Before: Stephen Reinhardt, John T. Noonan and

M. Margaret McKeown, Circuit Judges.

Opinion by Judge Reinhardt

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COUNSEL

Robert B. Jobe, Esq.; Arwen Swink, Esq., Law Office of Robert B. Jobe, San Francisco, California, for the petitioners.

Gregory G. Katsas, Esq.; Blair T. O’Connor, Esq.; John C.

Cunningham, Esq., United States Department of Justice,

Washington, D.C., for the respondent.

OPINION

REINHARDT, Circuit Judge:

Before the Board of Immigration Appeals (“BIA”), petitioners Herminio and Aracely Nevarez moved to reopen the

removal proceedings so that they could supplement their cancellation of removal application with newly acquired information about their youngest son’s learning disability. The BIA

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denied the motion to reopen as number-barred and denied the

motion to toll the voluntary departure period. We grant the

petition and remand to the BIA for further consideration of

the number-bar issue and for determination of the effect that

Dada v. Mukasey, ___ U.S. ___, 128 S.Ct. 2307 (2008) may

have on the petitioners’ eligibility for cancellation of removal.

I. BACKGROUND

Herminio and Aracely Nevarez, petitioners, are natives and

citizens of Mexico who entered the United States without

inspection in 1990. They have three sons, all of whom are

United States citizens and have been diagnosed with learning

disabilities of varying severity. 

The government commenced removal proceedings against

the petitioners in 2002. Petitioners conceded removability but

requested cancellation of removal based on the hardship that

would result to their two older children, who they knew at the

time had learning disabilities. The immigration judge (“IJ”)

denied relief, finding that the difficulties for the two children

would not rise to the level of “an exceptional and extremely

unusual hardship.” The IJ, however, granted a voluntary

departure period of 60 days.

The petitioners appealed the decision to the BIA, which

affirmed the IJ without opinion on November 3, 2004, but

reduced the duration of voluntary departure from 60 to 30

days. The petitioners filed a timely petition for review with

this court. 

While the petition for review was pending before us, the

petitioners filed their first motion to reopen on April 8, 2005,

presenting new evidence to the BIA that the couple’s youngest child was diagnosed with a more severe form of learning

disabilities than his brothers and had been recommended for

special education classes and speech therapy. Although the

petitioners conceded that the motion was late, they argued that

8372 NEVAREZ v. HOLDER
the BIA should consider it either under its sua sponte authority, 8 C.F.R. § 1003.2(a), or on the basis of equitable tolling.

The BIA denied the motion to reopen as untimely. The petitioners again filed a petition for review with this court, which

we consolidated with the pending petition on the merits. 

On November 15, 2006, we denied in part, dismissed in

part, and granted in part the consolidated petition for review.

In relevant part, we held that the BIA did not abuse its discretion by denying the motion to reopen as untimely, but that it

erred by improperly reducing the voluntary departure period

from 60 to 30 days. We remanded to the BIA for further proceedings with respect to voluntary departure. Following

remand, the BIA on May 3, 2007, issued an order vacating the

November 3, 2004 decision insofar as it granted 30 days of

voluntary departure and ordered that the petitioners depart

within 60 days.

The petitioners filed a second motion to reopen with the

BIA on June 20, 2007, again urging it to consider the new evidence regarding their youngest son’s disability. In connection

with the motion, they requested a stay of their voluntary

departure period. The BIA denied the motion to reopen on the

basis that it was number-barred. It also concluded that it

would not exercise its sua sponte authority to reopen the case,

and, finally, that the voluntary departure period would not be

stayed. The petition for review of the BIA order is now before

us.

II. ANALYSIS

The denial of a motion to reopen is a final administrative

decision subject to review by this court. See Singh v. Ashcroft,

367 F.3d 1182, 1185 (9th Cir. 2004). We review questions of

law presented by a denial of a motion to reopen de novo. See

Singh v. INS, 213 F.3d 1050, 1052 (9th Cir. 2000). We do not

have jurisdiction to review the BIA’s decision not to exercise

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its sua sponte authority to reopen the case. See Toufighi v.

Mukasey, 538 F.3d 988, 993 n.8 (9th Cir. 2008).

A. The BIA should adequately consider whether 

petitioner’s motion is number-barred

[1] A motion to reopen “is a form of procedural relief that

asks the [BIA] to change its decision in light of newly discovered evidence or a change in circumstances since the hearing.” Dada v. Mukasey, 128 S. Ct. at 2315 (internal quotation

marks omitted). Such a motion must “state the new facts that

will be proven at a hearing to be held if the motion is granted,

and shall be supported by affidavits or other evidentiary material.” 8 U.S.C. § 1229a(c)(7)(B). The BIA will not grant the

motion unless it determines that “evidence sought to be

offered is material and was not available and could not have

been discovered or presented at the former hearing . . . .” 8

C.F.R. § 1003.2(c)(1). In addition, aliens seeking reopening to

apply for discretionary relief must show that they have a

prima facie case of eligibility for relief and either that they did

not have an opportunity to apply for such relief in the former

hearing or that the relief is sought on the basis of circumstances that have arisen subsequent to the hearing. Id.; INS v.

Wang, 450 U.S. 139, 141 (1981) (per curiam). The 1996

amendments to the Immigration and Nationality Act (“INA”)

“transform[ed] the motion to reopen from a regulatory procedure to a statutory form of relief available to the alien.” Dada,

128 S. Ct. at 2316. 

[2] The INA sets forth two bars to the BIA’s consideration

of the statutory relief we have described: the number-bar,

which provides that the alien’s statutory right to file a motion

to reopen is limited to one such motion, 8 U.S.C.

§ 1229a(c)(7)(A), and the time-bar, 8 U.S.C.

§ 1229a(c)(7)(C), which establishes a deadline for filing the

motion. The regulation interpreting the INA similarly states

that, with certain exceptions not applicable here, “a party may

file only one motion to reopen deportation or exclusion pro8374 NEVAREZ v. HOLDER
ceedings . . . and that motion must be filed no later than 90

days after the date on which the final administrative decision

was rendered in the proceeding sought to be reopened . . . .”

8 C.F.R. § 1003.2(c)(2).

[3] The BIA concluded that petitioners’ 2007 motion was

number-barred because they had previously filed a motion to

reopen in 2005. Petitioners argue, however, that the 2005

motion does not bar them from filing a second motion

because the BIA denied it as untimely, and never considered

the motion itself. In its denial of petitioners’ 2007 motion to

reopen, the BIA fails adequately to address petitioners’ argument. The BIA observes that there is no requirement that a

time or number-barred motion be considered on the merits,

but does not reach the question of whether a motion that has

not been considered on the merits counts as a first petition for

the purposes of the number-bar rule. The two questions are

entirely different. The one addressed by the BIA is whether

the agency must consider a petition that is not properly before

it, the other is whether, under the number-bar rule, a petition

that is not properly before the agency serves to bar petitioners

from subsequently filing a petition that otherwise is.

[4] The question of whether a petition to reopen that is

denied for untimeliness and thus is not considered on the merits by the BIA counts as a first petition for purposes of the

number-bar rule is an open question that neither we, nor the

BIA, have previously considered. Because the BIA did not

adequately consider or explain its conclusion regarding this

legal question, we return that issue to it for further review.

B. The BIA should consider the application of Dada in

the first instance

The government argues that we should not remand this case

to the BIA, because the petitioners overstayed their voluntary

departure period and are thus ineligible for most forms of

relief for the next ten years. See 8 U.S.C. § 1229c(d)(1). The

NEVAREZ v. HOLDER 8375
government relies on Dada v. Mukasey, 128 S.Ct. 2307

(2008), which was decided while this petition for review was

pending. 

Prior to Dada, the rule in our circuit was that the filing of

a motion to reopen within the voluntary departure period

automatically stayed the running of that period while the BIA

was considering the motion. See Barroso v. Gonzales, 429

F.3d 1195 (9th Cir. 2005); Azarte v. Ashcroft, 394 F.3d 1278

(9th Cir. 2005).1 We reasoned that otherwise a voluntary

departure recipient — an alien supposedly favored by the

immigration laws — would be effectively stripped of his statutory right to file a motion to reopen under § 1229a(c)(7)(A).

We held that it would be absurd to conclude that Congress

intended sub silentio to preclude the availability of motions to

reopen to a significant number of aliens. At least three other

circuits reached the same conclusion. See Dada, 128 S.Ct. at

2312.

[5] In Dada, the Supreme Court agreed with us that the

INA should be interpreted to preserve the voluntary departure

recipient’s right to pursue reopening. See id. at 2316-19. It

rejected our solution, however, finding no statutory authority

for automatically tolling the voluntary departure period during

the pendency of a motion to reopen. See id. at 2318-19. It held

instead that the “appropriate way to reconcile the voluntary

departure and motion to reopen provisions is to allow an alien

to withdraw the request for voluntary departure before expiration of the departure period.” Id. at 2319. This rule would give

aliens “the option either to abide by the terms, and receive the

agreed-upon benefits, of voluntary departure; or, alternatively,

to forgo those benefits and remain in the United States to pursue an administrative motion.” Id. at 2319-20. Because the

petitioner in Dada was in a circuit that did not automatically

toll the voluntary departure period and his request to with1Thus, the filing of the petitioners’ 2007 motion to reopen would have

tolled their voluntary departure period under the law in effect at the time.

8376 NEVAREZ v. HOLDER
draw voluntary departure had been denied, the Supreme Court

remanded the case so that the BIA could reconsider the denial

and grant the request. The Court did not consider how its

opinion would apply to aliens in circuits like ours whose voluntary departure had been automatically stayed during the

pendency of their motions to reopen.

The government argues that under Dada such aliens, like

the petitioners here, have overstayed their voluntary departure

periods because the BIA had no authority to automatically

stay their voluntary departures and because they did not seek

to withdraw their voluntary departure requests before the

expiration of the departure period. The government’s view of

Dada, however, contravenes the language and spirit of its

holding. The Dada Court was concerned with giving voluntary departure recipients the option to choose between filing

a motion to reopen and taking advantage of the benefits of

voluntary departure, and thus held that petitioners should be

afforded the opportunity to withdraw their request for voluntary departure. See id. at 2319-20. Petitioners in our circuit

and a number of others, were not, in practice, afforded that

option, however. They were told, instead, that they could preserve their right to voluntary departure while exercising their

right to reopen. The government would construe Dada as

stripping such petitioners both of their motion to reopen,

because they have overstayed voluntary departure and are no

longer eligible for relief, and, for that same reason, all of the

benefits of voluntary departure — even though they simply

followed the law in their circuits. Such a construction violates

the fundamental principle established by Dada as well as the

long standing canon of statutory interpretation that deportation statutes should be construed in favor of the alien. See INS

v. St. Cyr, 533 U.S. 289, 320 (2001).

[6] Although we reject the government’s interpretation of

Dada, we conclude that whether Dada applies retroactively to

aliens like petitioners and, if so, how the option to withdraw

requests for voluntary departure should be afforded to aliens

NEVAREZ v. HOLDER 8377
in petitioners’ predicament are questions that are best

answered in the first instance by the BIA. The Executive

Office of Immigration Review (“EOIR”), which includes the

BIA, has issued a rule that addresses Dada, albeit its solution

— that a filing of any motion for reconsideration or reopening

automatically terminates voluntary departure — applies prospectively only and thus does not apply to the petitioners. See

Voluntary Departure: Effect of a Motion to Reopen or Reconsider or a Petition for Review, 73 Fed. Reg. 76,927 (Dec. 18,

2008) (codified at 8 C.F.R. § 1240.26(e)(1)(2009)). If Dada

itself applies retroactively to extinguish the automatic tolling

of petitioners’ voluntary departure period, however, petitioners and others in similar circumstances must be afforded some

opportunity to withdraw voluntary departure in order not to

forfeit their statutory entitlements. The EOIR appeared to recognize that some type of “transition rules” will be necessary

for aliens in petitioners’ position, as well as for others who

filed their motions to reopen prior to Dada. It explained, however, that its 2008 rule does not cover such aliens in part

because it was based on a rule proposed prior to Dada that did

not consider retroactive application. Id.

[7] Because the EOIR chose not to determine how to

resolve the petitioners’ problem in the rule it issued, we follow the lead of the Second Circuit which recently remanded

a similar question to the BIA to resolve in the first instance.

See Mahmood v. Holder, ___ F.3d ___, 2009 WL 83517 (2d

Cir. 2009). On remand, the BIA is instructed to consider the

consequences of the application of Dada to the petitioners.

For these reasons, we GRANT the petition for review and

REMAND the matter to the BIA for further proceedings.

Petition is GRANTED and REMANDED.

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