Chavez

MEMORANDUM **

Aurelio Garcia Chavez and Elvia Marcela Gomez Garcia, natives and citizens of Mexico, petition pro se for review of the Board of Immigration Appeals’ (BIA) affirmance of an Immigration Judge’s (IJ) denial of their application for cancellation of removal for failure to satisfy the continuous physical presence requirement of 8 U.S.C. § 1229b(b)(l)(A). Petitioners contend that the IJ erred in holding that their departures to Mexico interrupted their continuous presence. We have jurisdiction under 8 U.S.C. § 1252 . We grant the petition and remand for further proceedings.

We reject respondent’s contention that petitioners failed to exhaust administrative remedies. Their brief in support of their appeal to the Board raised the issue of continuous physical presence. See 8 U.S.C. § 1252 (d)(1); Ladha v. INS, 215 F.3d 889, 903 (9th Cir.2000).

An intervening change in the law requires us to remand the case. It appears from the record that petitioners departures may have constituted border turnarounds or uninformed voluntary departures, as opposed to a knowing acceptance of administrative voluntary departure. In Tapia v. Gonzales, 430 F.3d 997, 998 (9th Cir.2005), we…