Gerardo Rafael Velezmoro v. John Ashcroft, Attorney General

362 F.3d 1231 Gerardo Rafael VELEZMORO, Petitioner, v. John ASHCROFT, Attorney General, Respondent. No. 02-73244. United States Court of Appeals, Ninth Circuit. Argued and Submitted February 13, 2004. Filed April 1, 2004. Vadim Yuzefpolsky, Beverly Hills, CA, for the petitioner-appellant. Jacqueline R. Dryden, Michele Y.F. Sarko, U.S. Department of Justice, Civil Division, Washington, DC, for the respondent-appellee. On Petition for Review of an Order of the Board of Immigration Appeals. Before: B. FLETCHER, PREGERSON, and BRUNETTI, Circuit Judges. BETTY B. FLETCHER, Circuit Judge: 1 Gerardo Rafael Velezmoro ("Velezmoro"), a native and citizen of Peru, petitions for review of a decision of the Board of Immigration Appeals ("BIA") denying his motion to reopen deportation proceedings. Velezmoro sought to apply for adjustment of status based on the fact that he had recently married a United States citizen. The BIA denied the motion because it concluded that Velezmoro was statutorily ineligible for adjustment of status as a result of his failure to depart the United States pursuant to an earlier grant of voluntary departure. We have jurisdiction pursuant to former 8 U.S.C. §…

Gerardo Rafael Velezmoro (‘Velezmo-ro”), a native and citizen of Peru, petitions for review of a decision of the Board of Immigration Appeals (“BIA”) denying his motion to reopen deportation proceedings. Velezmoro sought to apply for adjustment of status based on the fact that he had recently married a United States citizen. The BIA denied the motion because it concluded that Velezmoro was statutorily ineligible for adjustment of status as a result of his failure to depart the United States pursuant to an earlier grant of voluntary departure. We have jurisdiction pursuant to former 8 U.S.C. § 1105a, and the transitional rules set forth in section 309(c) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009, as amended by the Act of October 11, 1996, Pub.L. No. 104-302, 110 Stat. 3656. We grant the petition and remand for further proceedings.

I. Background, and Procedural History

In 1994, the former Immigration and Naturalization Service (“INS”) 1 initiated deportation proceedings against Velezmo-ro, charging that he had entered the country without inspection. Velezmoro conceded the charge but applied for asylum and…

dissenting:

The majority of the panel has decided to grant the petition for review because the BIA has not had an opportunity to consider whether the five year bar in 8 U.S.C. § 1252b continues to apply to Velezmoro’s request for adjustment of status.

I dissent because the five year bar was correctly applied by the BIA at the time of its decision, and this is the only issue before us. Whether Velezmoro is now eligible for adjustment of status based upon this lapse in time is not before us and whether he has forfeited his opportunity for relief by failing to abide by the immigration process should not persuade us.

I.

Velezmoro is a native and citizen of Peru who illegally entered the United States in 1992. In November of 1994, the INS initiated deportation proceedings. Velezmoro conceded deportability but filed an application for asylum and for temporary withholding of removal. His applications were denied, and the denials were ultimately affirmed by the BIA. Following the conclusion of his appeal to the BIA in April of 1998, he was granted a voluntary departure date of May 23, 1998. Velezmoro married a United States citizen on December 30,1997.

Velezmoro did not depart the…