Guzman-Gutierrez

MEMORANDUM *

Hector Guzman-Gutierrez is a Mexican national who has accrued more than a year of unlawful presence in the United States. Although inadmissible under § 212(a)(9)(C)(i)(I) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1182 (a)(9)(C)(i)(I), Guzman-Gutierrez argued that he was eligible for penalty-fee adjustment of status under INA § 245(i). An Immigration Judge found him to be ineligible and granted him voluntary departure with an alternate order of removal. The Board of Immigration Appeals (“BIA”) dismissed his appeal.

Although Guzman-Gutierrez filed a timely petition for review of the BIA’s decision, he also filed a motion to reopen in which he contended that he was eligible for the extreme hardship waiver of INA § 212(a)(9)(B)(v). The BIA treated this motion as a motion for reconsideration and denied it as untimely.

For the reasons set forth in Acosta v. Gonzales, 439 F.3d 550 (2006), we reverse the BIA decision on the merits and conclude that Guzman-Gutierrez is eligible for penalty-fee adjustment of status under INA § 245(i).

Since we reverse on the merits, we ordinarily need not reach the issue of denial of his motion for reconsideration. However,…