                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

HERMINIO NEVAREZ NEVAREZ;             
ARACELY Y. NEVAREZ,                       No. 07-74271
                       Petitioners,       Agency Nos.
               v.                        A079-601-023
ERIC H. HOLDER JR., Attorney              A079-601-024
General,                                   OPINION
                      Respondent.
                                      
         On Petition for Review of an Order of the
              Board of Immigration Appeals

                   Argued and Submitted
         April 15, 2009—San Francisco, California

                     Filed July 8, 2009

      Before: Stephen Reinhardt, John T. Noonan and
         M. Margaret McKeown, Circuit Judges.

                Opinion by Judge Reinhardt




                           8369
                     NEVAREZ v. HOLDER                  8371




                        COUNSEL

Robert B. Jobe, Esq.; Arwen Swink, Esq., Law Office of Rob-
ert B. Jobe, San Francisco, California, for the petitioners.

Gregory G. Katsas, Esq.; Blair T. O’Connor, Esq.; John C.
Cunningham, Esq., United States Department of Justice,
Washington, D.C., for the respondent.


                         OPINION

REINHARDT, Circuit Judge:

   Before the Board of Immigration Appeals (“BIA”), peti-
tioners Herminio and Aracely Nevarez moved to reopen the
removal proceedings so that they could supplement their can-
cellation of removal application with newly acquired informa-
tion about their youngest son’s learning disability. The BIA
8372                  NEVAREZ v. HOLDER
denied the motion to reopen as number-barred and denied the
motion to toll the voluntary departure period. We grant the
petition and remand to the BIA for further consideration of
the number-bar issue and for determination of the effect that
Dada v. Mukasey, ___ U.S. ___, 128 S.Ct. 2307 (2008) may
have on the petitioners’ eligibility for cancellation of removal.

I.   BACKGROUND

   Herminio and Aracely Nevarez, petitioners, are natives and
citizens of Mexico who entered the United States without
inspection in 1990. They have three sons, all of whom are
United States citizens and have been diagnosed with learning
disabilities of varying severity.

   The government commenced removal proceedings against
the petitioners in 2002. Petitioners conceded removability but
requested cancellation of removal based on the hardship that
would result to their two older children, who they knew at the
time had learning disabilities. The immigration judge (“IJ”)
denied relief, finding that the difficulties for the two children
would not rise to the level of “an exceptional and extremely
unusual hardship.” The IJ, however, granted a voluntary
departure period of 60 days.

   The petitioners appealed the decision to the BIA, which
affirmed the IJ without opinion on November 3, 2004, but
reduced the duration of voluntary departure from 60 to 30
days. The petitioners filed a timely petition for review with
this court.

   While the petition for review was pending before us, the
petitioners filed their first motion to reopen on April 8, 2005,
presenting new evidence to the BIA that the couple’s youn-
gest child was diagnosed with a more severe form of learning
disabilities than his brothers and had been recommended for
special education classes and speech therapy. Although the
petitioners conceded that the motion was late, they argued that
                      NEVAREZ v. HOLDER                    8373
the BIA should consider it either under its sua sponte author-
ity, 8 C.F.R. § 1003.2(a), or on the basis of equitable tolling.
The BIA denied the motion to reopen as untimely. The peti-
tioners again filed a petition for review with this court, which
we consolidated with the pending petition on the merits.

   On November 15, 2006, we denied in part, dismissed in
part, and granted in part the consolidated petition for review.
In relevant part, we held that the BIA did not abuse its discre-
tion by denying the motion to reopen as untimely, but that it
erred by improperly reducing the voluntary departure period
from 60 to 30 days. We remanded to the BIA for further pro-
ceedings with respect to voluntary departure. Following
remand, the BIA on May 3, 2007, issued an order vacating the
November 3, 2004 decision insofar as it granted 30 days of
voluntary departure and ordered that the petitioners depart
within 60 days.

   The petitioners filed a second motion to reopen with the
BIA on June 20, 2007, again urging it to consider the new evi-
dence regarding their youngest son’s disability. In connection
with the motion, they requested a stay of their voluntary
departure period. The BIA denied the motion to reopen on the
basis that it was number-barred. It also concluded that it
would not exercise its sua sponte authority to reopen the case,
and, finally, that the voluntary departure period would not be
stayed. The petition for review of the BIA order is now before
us.

II.   ANALYSIS

  The denial of a motion to reopen is a final administrative
decision subject to review by this court. See Singh v. Ashcroft,
367 F.3d 1182, 1185 (9th Cir. 2004). We review questions of
law presented by a denial of a motion to reopen de novo. See
Singh v. INS, 213 F.3d 1050, 1052 (9th Cir. 2000). We do not
have jurisdiction to review the BIA’s decision not to exercise
8374                   NEVAREZ v. HOLDER
its sua sponte authority to reopen the case. See Toufighi v.
Mukasey, 538 F.3d 988, 993 n.8 (9th Cir. 2008).

  A.   The BIA should adequately consider whether
       petitioner’s motion is number-barred

   [1] A motion to reopen “is a form of procedural relief that
asks the [BIA] to change its decision in light of newly discov-
ered evidence or a change in circumstances since the hear-
ing.” Dada v. Mukasey, 128 S. Ct. at 2315 (internal quotation
marks omitted). Such a motion must “state the new facts that
will be proven at a hearing to be held if the motion is granted,
and shall be supported by affidavits or other evidentiary mate-
rial.” 8 U.S.C. § 1229a(c)(7)(B). The BIA will not grant the
motion unless it determines that “evidence sought to be
offered is material and was not available and could not have
been discovered or presented at the former hearing . . . .” 8
C.F.R. § 1003.2(c)(1). In addition, aliens seeking reopening to
apply for discretionary relief must show that they have a
prima facie case of eligibility for relief and either that they did
not have an opportunity to apply for such relief in the former
hearing or that the relief is sought on the basis of circum-
stances that have arisen subsequent to the hearing. Id.; INS v.
Wang, 450 U.S. 139, 141 (1981) (per curiam). The 1996
amendments to the Immigration and Nationality Act (“INA”)
“transform[ed] the motion to reopen from a regulatory proce-
dure to a statutory form of relief available to the alien.” Dada,
128 S. Ct. at 2316.

   [2] The INA sets forth two bars to the BIA’s consideration
of the statutory relief we have described: the number-bar,
which provides that the alien’s statutory right to file a motion
to reopen is limited to one such motion, 8 U.S.C.
§ 1229a(c)(7)(A),      and     the    time-bar,     8     U.S.C.
§ 1229a(c)(7)(C), which establishes a deadline for filing the
motion. The regulation interpreting the INA similarly states
that, with certain exceptions not applicable here, “a party may
file only one motion to reopen deportation or exclusion pro-
                      NEVAREZ v. HOLDER                    8375
ceedings . . . and that motion must be filed no later than 90
days after the date on which the final administrative decision
was rendered in the proceeding sought to be reopened . . . .”
8 C.F.R. § 1003.2(c)(2).

    [3] The BIA concluded that petitioners’ 2007 motion was
number-barred because they had previously filed a motion to
reopen in 2005. Petitioners argue, however, that the 2005
motion does not bar them from filing a second motion
because the BIA denied it as untimely, and never considered
the motion itself. In its denial of petitioners’ 2007 motion to
reopen, the BIA fails adequately to address petitioners’ argu-
ment. The BIA observes that there is no requirement that a
time or number-barred motion be considered on the merits,
but does not reach the question of whether a motion that has
not been considered on the merits counts as a first petition for
the purposes of the number-bar rule. The two questions are
entirely different. The one addressed by the BIA is whether
the agency must consider a petition that is not properly before
it, the other is whether, under the number-bar rule, a petition
that is not properly before the agency serves to bar petitioners
from subsequently filing a petition that otherwise is.

   [4] The question of whether a petition to reopen that is
denied for untimeliness and thus is not considered on the mer-
its by the BIA counts as a first petition for purposes of the
number-bar rule is an open question that neither we, nor the
BIA, have previously considered. Because the BIA did not
adequately consider or explain its conclusion regarding this
legal question, we return that issue to it for further review.

  B.   The BIA should consider the application of Dada in
       the first instance

   The government argues that we should not remand this case
to the BIA, because the petitioners overstayed their voluntary
departure period and are thus ineligible for most forms of
relief for the next ten years. See 8 U.S.C. § 1229c(d)(1). The
8376                      NEVAREZ v. HOLDER
government relies on Dada v. Mukasey, 128 S.Ct. 2307
(2008), which was decided while this petition for review was
pending.

   Prior to Dada, the rule in our circuit was that the filing of
a motion to reopen within the voluntary departure period
automatically stayed the running of that period while the BIA
was considering the motion. See Barroso v. Gonzales, 429
F.3d 1195 (9th Cir. 2005); Azarte v. Ashcroft, 394 F.3d 1278
(9th Cir. 2005).1 We reasoned that otherwise a voluntary
departure recipient — an alien supposedly favored by the
immigration laws — would be effectively stripped of his stat-
utory right to file a motion to reopen under § 1229a(c)(7)(A).
We held that it would be absurd to conclude that Congress
intended sub silentio to preclude the availability of motions to
reopen to a significant number of aliens. At least three other
circuits reached the same conclusion. See Dada, 128 S.Ct. at
2312.

   [5] In Dada, the Supreme Court agreed with us that the
INA should be interpreted to preserve the voluntary departure
recipient’s right to pursue reopening. See id. at 2316-19. It
rejected our solution, however, finding no statutory authority
for automatically tolling the voluntary departure period during
the pendency of a motion to reopen. See id. at 2318-19. It held
instead that the “appropriate way to reconcile the voluntary
departure and motion to reopen provisions is to allow an alien
to withdraw the request for voluntary departure before expira-
tion of the departure period.” Id. at 2319. This rule would give
aliens “the option either to abide by the terms, and receive the
agreed-upon benefits, of voluntary departure; or, alternatively,
to forgo those benefits and remain in the United States to pur-
sue an administrative motion.” Id. at 2319-20. Because the
petitioner in Dada was in a circuit that did not automatically
toll the voluntary departure period and his request to with-
  1
    Thus, the filing of the petitioners’ 2007 motion to reopen would have
tolled their voluntary departure period under the law in effect at the time.
                      NEVAREZ v. HOLDER                     8377
draw voluntary departure had been denied, the Supreme Court
remanded the case so that the BIA could reconsider the denial
and grant the request. The Court did not consider how its
opinion would apply to aliens in circuits like ours whose vol-
untary departure had been automatically stayed during the
pendency of their motions to reopen.

   The government argues that under Dada such aliens, like
the petitioners here, have overstayed their voluntary departure
periods because the BIA had no authority to automatically
stay their voluntary departures and because they did not seek
to withdraw their voluntary departure requests before the
expiration of the departure period. The government’s view of
Dada, however, contravenes the language and spirit of its
holding. The Dada Court was concerned with giving volun-
tary departure recipients the option to choose between filing
a motion to reopen and taking advantage of the benefits of
voluntary departure, and thus held that petitioners should be
afforded the opportunity to withdraw their request for volun-
tary departure. See id. at 2319-20. Petitioners in our circuit
and a number of others, were not, in practice, afforded that
option, however. They were told, instead, that they could pre-
serve their right to voluntary departure while exercising their
right to reopen. The government would construe Dada as
stripping such petitioners both of their motion to reopen,
because they have overstayed voluntary departure and are no
longer eligible for relief, and, for that same reason, all of the
benefits of voluntary departure — even though they simply
followed the law in their circuits. Such a construction violates
the fundamental principle established by Dada as well as the
long standing canon of statutory interpretation that deporta-
tion statutes should be construed in favor of the alien. See INS
v. St. Cyr, 533 U.S. 289, 320 (2001).

   [6] Although we reject the government’s interpretation of
Dada, we conclude that whether Dada applies retroactively to
aliens like petitioners and, if so, how the option to withdraw
requests for voluntary departure should be afforded to aliens
8378                  NEVAREZ v. HOLDER
in petitioners’ predicament are questions that are best
answered in the first instance by the BIA. The Executive
Office of Immigration Review (“EOIR”), which includes the
BIA, has issued a rule that addresses Dada, albeit its solution
— that a filing of any motion for reconsideration or reopening
automatically terminates voluntary departure — applies pro-
spectively only and thus does not apply to the petitioners. See
Voluntary Departure: Effect of a Motion to Reopen or Recon-
sider or a Petition for Review, 73 Fed. Reg. 76,927 (Dec. 18,
2008) (codified at 8 C.F.R. § 1240.26(e)(1)(2009)). If Dada
itself applies retroactively to extinguish the automatic tolling
of petitioners’ voluntary departure period, however, petition-
ers and others in similar circumstances must be afforded some
opportunity to withdraw voluntary departure in order not to
forfeit their statutory entitlements. The EOIR appeared to rec-
ognize that some type of “transition rules” will be necessary
for aliens in petitioners’ position, as well as for others who
filed their motions to reopen prior to Dada. It explained, how-
ever, that its 2008 rule does not cover such aliens in part
because it was based on a rule proposed prior to Dada that did
not consider retroactive application. Id.

   [7] Because the EOIR chose not to determine how to
resolve the petitioners’ problem in the rule it issued, we fol-
low the lead of the Second Circuit which recently remanded
a similar question to the BIA to resolve in the first instance.
See Mahmood v. Holder, ___ F.3d ___, 2009 WL 83517 (2d
Cir. 2009). On remand, the BIA is instructed to consider the
consequences of the application of Dada to the petitioners.

  For these reasons, we GRANT the petition for review and
REMAND the matter to the BIA for further proceedings.

  Petition is GRANTED and REMANDED.
