Thomas

MEMORANDUM **

Virginia Eloisa Thomas and Jorge Eric Thomas Franco, married natives and citizens of Panama, petition for review of the *847 Board of Immigration Appeals’ (“BIA”) denial of their motion to reopen removal proceedings for the purpose of applying for adjustment of status. We grant the petition for review and remand for further proceedings.

The government contends that petitioners have waived any challenge to the BIA’s application of a statutory bar to relief for those who fail to comply with a voluntary departure order. We retain discretion to review one aspect of this issue, however, “because the government briefed it, and thus suffers no prejudice from [the petitioners’] failure to properly raise the issue.” Singh v. Ashcroft, 361 F.3d 1152 , 1157 n. 3 (9th Cir.2004).

The government also contends that “[i]t is irrelevant that the Board’s order denying reopening referred to the current version of the statute.” Reviewing the BIA’s decision for abuse of discretion, Singh v. INS, 213 F.3d 1050, 1052 (9th Cir.2000), we disagree. The BIA not only cited the incorrect statute, but also applied 8 U.S.C. § 1229c(d)’s notice requirement to conclude that “[t]he consequences of…