Raul Diaz-Aguilar v. Eric H. Holder Jr., No. 08-73338 (9th Cir. 2010)
Annotate this Case
Download PDF
FILED AUG 30 2010 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT RAUL DIAZ-AGUILAR, No. 08-73338 Petitioner, Agency No. A046-280-229 v. MEMORANDUM * ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted August 10, 2010 ** Before: O SCANNLAIN, HAWKINS, and IKUTA, Circuit Judges. Raul Diaz-Aguilar, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals ( BIA ) order dismissing his appeal from an immigration judge s ( IJ ) removal order. We have jurisdiction under 8 U.S.C. * 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). § 1252. We review de novo questions of law, Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir. 2008), and we grant in part and deny in part the petition. Contrary to the government s contention, the BIA s July 22, 2008, order was the only final order of removal in this case because the BIA previously remanded for the entry of a removal order, see generally Molina-Camacho v. Ashcroft, 393 F.3d 937 (9th Cir. 2004), overruled by Lolong v. Gonzales, 484 F.3d 1173 (9th Cir. 2007) (en banc), and Diaz-Aguilar filed a timely notice of appeal from the IJ s decision on remand, see 8 U.S.C. § 1101(a)(47)(B). It follows that we have jurisdiction to consider the BIA s October 16, 2006, decision. See 8 U.S.C. § 1252(b)(9). The BIA erred in concluding that Diaz-Aguilar was ineligible for cancellation of removal for legal permanent residents based on his failure to satisfy a continuous physical presence requirement. By its own terms, 8 U.S.C. § 1229b(d)(2) applies to the continuous physical presence requirement for nonpermanent residents seeking cancellation of removal, see 8 U.S.C. §§ 1229b(b)(1)(A) & (2)(A)(ii), rather than the continuous residence requirement for legal permanent resident cancellation of removal, see 8 U.S.C. § 1229b(a)(2); see also Matter of Blancas-Lara, 23 I. & N. Dec. 458, 460 (defining residence 2 08-73338 for purposes of 8 U.S.C. § 1229b(a)(2)). We therefore remand for reconsideration of Diaz-Aguilar s eligibility for cancellation of removal in light of our disposition. In his opening brief, Diaz-Aguilar failed to set forth any substantive argument regarding the IJ s refusal to reconsider his prior denial of a waiver under 8 U.S.C. § 1227(a)(1)(E)(iii). See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir. 1996) (issues not supported by argument in a party s opening brief are deemed waived). The government shall bear the costs of this petition for review. PETITION FOR REVIEW GRANTED in part; DENIED in part; REMANDED. 3 08-73338
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
