JOSE VARGAS-SAAVEDRA V. LORETTA E. LYNCH, No. 11-71259 (9th Cir. 2016)
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT JUN 17 2016 MOLLY C. DWYER, CLERK JOSE VARGAS-SAAVEDRA, Petitioner, No. 11-71259 U.S. COURT OF APPEALS Agency No. A078-752-344 v. MEMORANDUM* LORETTA E. LYNCH, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted June 10, 2016 Seattle, Washington Before: EBEL,** PAEZ, and BYBEE, Circuit Judges. Jose Vargas-Saavedra petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s decision denying adjustment of status. We have jurisdiction under 8 U.S.C. § 1252. We * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable David M. Ebel, Senior Circuit Judge for the U.S. Court of Appeals for the Tenth Circuit, sitting by designation. review de novo questions of law. Garfias-Rodriguez v. Holder, 702 F.3d 504, 512 n.6 (9th Cir. 2012) (en banc). We grant Vargas’s petition for review and remand. The BIA erred in applying In re Torres-Garcia, 23 I. & N. Dec. 866 (BIA 2006), against Vargas retroactively. See Acosta-Olivarria v. Lynch, 799 F.3d 1271, 1275–77 (9th Cir. 2015). Like the petitioner in Acosta-Olivarria, Vargas applied for adjustment of status and paid fees in the window between our decision permitting petitioners like him to seek adjustment of status, see Perez-Gonzales v. Ashcroft, 379 F.3d 783, 789 (9th Cir. 2004), and the BIA’s first decision calling this line of cases into question, see Torres-Garcia, 23 I. & N. Dec. 866. It was thus reasonable for Vargas to rely on our decision in Perez. See Acosta-Olivarria, 799 F.3d at 1275–77. There is no significant factual difference between Vargas’s situation and the one presented in Acosta-Olivarria; we thus conclude that the BIA’s holding in Torres-Garcia does not apply retroactively to bar Vargas’s application for adjustment. We remand to the BIA to adjudicate Vargas’s application for adjustment of status. PETITION FOR REVIEW GRANTED; REMANDED. 2
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