Rodrigo Soria-Garibay v. Loretta E. Lynch

MEMORANDUM **

Petitioner Rodrigo Soria-Garibay seeks review of the Board of Immigration Appeals’s (BIA) decision upholding the immigration judge’s (IJ) denial of his application for voluntary departure. We have jurisdiction under 8 U.S.C. § 1252 (a).

Because Soria-Garibay requested voluntary departure more than 30 days after the merits hearing was initially calendared, the IJ could not. grant voluntary departure “except pursuant to a stipulation” by the Department of Homeland Security (DHS) under 8 C.F.R. § 1240.26 (b)(2). See 8 C.F.R. § 1240.26 (b)(l)(ii). Soria-Garibay contends that when the DHS makes such a stipulation under § 1240.26(b)(2), the alien is entitled to a grant of voluntary departure and the IJ lacks discretion to deny that form of relief. Therefore, he argues, the IJ and BIA erred in denying him such relief here. The government offers a contrary interpretation of § 1240.26(b)(2), contending that government counsel’s stipulation to a grant of voluntary departure is necessary to allow the IJ to consider the alien’s untimely motion for voluntary departure, but the IJ nevertheless retains discretion to deny relief.

We need not reach this interpretative issue here.…

concurring.

The majority errs in declining to answer the question raised by the parties: whether the government’s stipulation to a grant of voluntary departure under 8 C.F.R. § 1240.26 (b)(2) deprives the IJ of discretion to deny that form of relief.

The majority’s ruling elides the fact that the parties offer two competing interpretations of § 1240.26(b)(2). Under Soria-Garibay’s interpretation of this regulation, when DHS makes a stipulation under § 1240.26(b)(2), as it did here, the IJ has a mandatory duty to grant voluntary departure to the alien, regardless of any qualifications DHS tries to include in its stipulation. The government offers a different interpretation of § 1240.26(b)(2): it claims that DHS’s stipulation merely allows the IJ to consider an otherwise untimely request for voluntary departure, but does not deprive the IJ of the discretion to grant or deny such relief.

The majority holds that we need not reach this interpretative question because “DHS made clear that the purpose of its § 1240.26(b)(2) stipulation was only to allow the IJ to consider Soria-Garibay’s otherwise untimely request for voluntary departure.” Maj. Op. at 941. But this ruling sub silentio…

FILED

NOT FOR PUBLICATION JUL 21 2015

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

RODRIGO SORIA-GARIBAY, No. 12-72310

Petitioner, Agency No. A095-770-156

v.

MEMORANDUM*

LORETTA E. LYNCH, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted June 12, 2015** San Francisco, California

Before: SCHROEDER, IKUTA, and CHRISTEN, Circuit Judges.

Petitioner Rodrigo Soria-Garibay seeks review of the Board of Immigration

Appeals’s (BIA) decision upholding the immigration judge’s (IJ) denial of his

application for voluntary departure. We have jurisdiction under 8 U.S.C.

§ 1252(a).

* 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). Because Soria-Garibay requested voluntary departure more than 30 days

after the merits hearing was initially calendared, the IJ could not grant…