Marcelo Vinicus Nogueira and Katya Solange Faria, Petitioners, v. Immigration and Naturalization Service, Respondent, 132 F.3d 39 (9th Cir. 1997)

MEMORANDUM^* 

The parties are familiar with the factual and procedural history and we will not recount it here except as necessary to clarify our decision.

We reverse the BIA's denial of Petitioners' appeal for the following reasons:

1. The Board of Immigration Appeals ("BIA") conducted a de novo review when it considered Petitioners, appeal of their exclusion orders.

2. Therefore, we review only the BIA's determinations rather than those of the Immigration Judge, See Yepes-Prado v. INS, 10 F.3d 1;63, 1366 (9th Cir. 1993).

3. Agency fact-finding is reversed if not supported by substantial evidence. See Id.

4. The BIA's finding that Petitioners are legalization applicants is supported by substantial evidence.

5. The BIA's denial of relief only can be affirmed on the basis articulated in its decision. See Jen Hung Ng v. INS, 804 F.2d 5-4, 538 (9th Cir. 1986).

6. The sole basis for the BIA's dismissal of Petitioners' appeal was that 8 C.F.R. § 245a.2(m) (1) required Petitioners' to obtain advance parole before leaving for Brazil.

7. Less than four months before the BIA considered this petition, we invalidated the very regulation that forms the basis of the BIA's decision. Espinoza-Gutierrez v. INS, 94 F.3d 1270, 1271 (5th Cir. 1996).

8. An INS regulation that we invalidate as to one alien is invalid as to all. See Naranjo-Aguilera v. INS, 30 F.3d 1106, 1114 (9th Cir. 1994).

9. Because the BIA's decision relied solely upon an invalidated statute, we reverse.

REVERSED.