Lezama-Garcia, et al. v. Holder, Jr., No. 06-74703 (9th Cir. 2011)
Annotate this CasePetitioner, a native and citizen of Nicaragua, petitioned for review of an order of the BIA dismissing his appeal of an IJ's order of removal. The IJ determined that, under 8 C.F.R. 245.13(k)(1), petitioner had abandoned his pending application for adjustment of status under Section 202 of the Nicaraguan Adjustment and Central American Relief Act (NACARA), 8 U.S.C. 1255, as of the moment he drove from the United States into Mexico, even if his unplanned departure was not desired and he immediately turned around and attempted to return. The court concluded that deeming petitioner's NACARA application abandoned was contrary to the regulation where petitioner's departure was not "desired," and ordering removal conflicted with NACARA itself. Therefore, the court granted the petition and remanded for further proceedings.
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