No. 02-73947.

394 F.3d 1278 (2005)

Salvador AZARTE; Celia Castellon, Petitioners, v. John ASHCROFT, Attorney General, Respondent.

United States Court of Appeals, Ninth Circuit.

Filed January 18, 2005.

Attorney(s) appearing for the Case

Marina Pineda-Kamariotis, Law Office of Marina Pineda-Kamariotis, San Francisco, CA, for the petitioners.

Peter D. Keisler, Assistant Attorney General, Civil Division, Washington, DC; David V. Bernal, Assistant Director, Office of Immigration Litigation, Civil Division, Washington, DC; Jamie M. Dowd, Trial Attorney, Office of Immigration Litigation, Civil Division, Washington, DC, for the respondents.

Before: REINHARDT, McKEOWN, and PAEZ, Circuit Judges.

REINHARDT, Circuit Judge.

Under the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), does the Board of Immigration Appeals (BIA) abuse its discretion when it dismisses a motion to reopen, timely filed by an alien during his voluntary departure period, because the alien subsequently fails to depart prior to the end of that period while awaiting the BIA's decision? We conclude that it does and that the BIA must decide the motion on the merits.<...

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