                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 21 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



JIMY ANTONIO NUNEZ-CASTRO,                       No. 10-70028

              Petitioner,                        Agency No. A095-682-937

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                     Argued and Submitted February 14, 2013
                              Pasadena, California

Before: GOODWIN, KLEINFELD, and SILVERMAN, Circuit Judges.




       Nunez-Castro petitioned for review of the BIA’s decision denying his

application for asylum. Prior to oral argument, the government informed the court

that Nunez-Castro voluntarily returned to Honduras, which petitioner’s counsel did



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
not dispute. Since Nunez-Castro left voluntarily and was not “excluded, deported,

or removed,” our holding in Mendez-Alcaraz v. Gonzales, 464 F.3d 842, 844 (9th

Cir. 2006), does not apply.




      The facts surrounding Nunez-Castro’s departure are not in the administrative

record, and the BIA never ruled on whether his departure makes this petition moot

or abandoned. See 8 C.F.R. § 1208.8(a) (“An applicant who leaves the United

States without first obtaining advance parole . . . shall be presumed to have

abandoned his or her application under this section.”). We therefore remand to the

BIA to consider the legal effect, if any, of Nunez-Castro’s departure. See

Fernandez–Ruiz v. Gonzales, 468 F.3d 1159, 1170 (9th Cir. 2006). We express no

opinion on the merits of Nunez-Castro’s asylum application.




      REMANDED.




                                          2
