Lezama-Garcia

Opinion by Judge SEABRIGHT; Dissent by Judge RAWLINSON.

OPINION

Carlos Antonio Lezama-Gareia (“Lezama”), a native and citizen of Nicaragua, petitions for review of an order of the Board of Immigration Appeals (“BIA”) dismissing his appeal of an immigration judge’s (“IJ”) order of removal. The IJ determined that, under 8 C.F.R. § 245.13 (k)(l), Lezama had abandoned his pending application for adjustment of status under Section 202 of the Nicaraguan Adjustment and Central American Relief Act 1 (“NACARA”) 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. As a result, the IJ ordered Lezama to be removed as an inadmissible arriving alien.

We conclude that deeming Lezama’s NACARA application abandoned was contrary to the regulation, and ordering removal conflicted with NACARA itself. We therefore grant the petition and remand for further proceedings.

I. BACKGROUND

Lezama entered the United States without inspection from Nicaragua. He has remained in this country continuously since at least April 1993 (other than the March 2004 incident in question here where he…

dissenting:

I respectfully dissent from the majority opinion for the following four reasons, which I discuss in greater detail below:

Our precedent has consistently reinforced the premise that we do not address issues that are not raised in a petitioner’s opening brief. See Fence Creek Cattle Co. v. USFS, 602 F.3d 1125 , 1134 n. 6 (9th Cir.2010); see also ONDA v. Locke, 572 F.3d 610 , 614 n. 3 (9th Cir.2009). In his brief to this court, the petitioner argued in two and one-half pages that he “did not leave the country intentionally or voluntarily.” Petitioner’s Opening Brief, pp. 11-13. He essentially sought to equate the circumstances of his departure to a forced departure. See id. Never once did the petitioner cite to the prefatory language of the regulation that has been seized upon by the majority to make an argument that the petitioner never made. See id. The majority’s stark departure from our precedent seriously calls into question the legitimacy of the majority’s holding.

The majority’s departure from our precedent is compounded by the fact that the opinion gives absolutely no deference to the agency’s interpretation of its regulation. The majority opinion dutifully…

I. BACKGROUND

Lezama entered the United States without inspection from Nicaragua. He has remained in this country continuously since at least April 1993 (other than the March 2004 incident in question here where he drove into Mexico).3 He was sub- ject to an order of removal, having had a prior asylum appli- cation denied in absentia in 1997. In March of 2000,4 1 Pub. L. No. 105-100, 111 Stat. 2160 (Nov. 19, 1997) (codified as amended in statutory notes following 8 U.S.C. § 1255). 2 The BIA also affirmed the IJ’s denial of Lezama’s applications for asy- lum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We uphold those aspects of the BIA’s decision in a sep- arate memorandum disposition filed concurrently with this opinion. 3 Several documents in the administrative record indicate that Lezama entered in March or April 1993, although an earlier asylum application suggests that he first entered in April 1991. In any event, the record is undisputed that he was present in the United States continuously from April 1993 until March 25, 2004. 4 The exact date of his NACARA § 202 application is unclear — a U.S. Citizenship and Immigration Services…