Rosa Contreras-De Elena v. Eric H. Holder Jr., No. 08-71321 (9th Cir. 2010)

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FILED SEP 07 2010 NOT FOR PUBLICATION MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ROSA ELENA CONTRERAS-DE ELENA, No. 08-71321 Agency No. A070-105-480 Petitioner, MEMORANDUM * v. ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted August 23, 2010 ** Before: LEAVY, HAWKINS, and THOMAS, Circuit Judges. Rosa Elena Contreras-De Elena, a native and citizen of Colombia, petitions for review of the Board of Immigration Appeals ( BIA ) order dismissing her * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). appeal from an immigration judge s decision denying her motion to reopen exclusion proceedings conducted in absentia. We have jurisdiction under 8 U.S.C. § 1252. We grant the petition for review and remand. The BIA dismissed Contreras-De Elena s appeal as moot because she departed during the pendency of her appeal. In an intervening opinion, Coyt v. Holder, 593 F.3d 902, 907 (9th Cir. 2010), this court held that a petitioner s physical removal by the government while his motion to reopen was pending did not constitute withdrawal of the motion. We remand for the BIA to reconsider whether Contreras-De Elena s appeal is withdrawn in light of our holding in Coyt. In light of our disposition, we need not reach Contreras-De Elena s remaining contentions. PETITION FOR REVIEW GRANTED; REMANDED. 2 08-71321

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