                                                                              FILED
                            NOT FOR PUBLICATION                                JUL 21 2015

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


RODRIGO SORIA-GARIBAY,                           No. 12-72310

              Petitioner,                        Agency No. A095-770-156

 v.
                                                 MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

              Respondent.


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

                            Submitted June 12, 2015**
                             San Francisco, California

Before: SCHROEDER, IKUTA, and CHRISTEN, Circuit Judges.

      Petitioner Rodrigo Soria-Garibay seeks review of the Board of Immigration

Appeals’s (BIA) decision upholding the immigration judge’s (IJ) denial of his

application for voluntary departure. We have jurisdiction under 8 U.S.C.

§ 1252(a).

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Because Soria-Garibay requested voluntary departure more than 30 days

after the merits hearing was initially calendared, the IJ could not grant voluntary

departure “except pursuant to a stipulation” by the Department of Homeland

Security (DHS) under 8 C.F.R. § 1240.26(b)(2). See 8 C.F.R. § 1240.26(b)(1)(ii).

Soria-Garibay contends that when the DHS makes such a stipulation under

§ 1240.26(b)(2), the alien is entitled to a grant of voluntary departure and the IJ

lacks discretion to deny that form of relief. Therefore, he argues, the IJ and BIA

erred in denying him such relief here. The government offers a contrary

interpretation of § 1240.26(b)(2), contending that government counsel’s stipulation

to a grant of voluntary departure is necessary to allow the IJ to consider the alien’s

untimely motion for voluntary departure, but the IJ nevertheless retains discretion

to deny relief.

      We need not reach this interpretative issue here. DHS made clear that the

purpose of its § 1240.26(b)(2) stipulation was only to allow the IJ to consider

Soria-Garibay’s otherwise untimely request for voluntary departure. DHS’s

attorney stated that “in order for the respondent to get [voluntary departure], the

Government would acquiesce and leave it to the Court’s discretion to the extent the

Court has discretion to make a decision in this case.” Because DHS’s stipulation




                                           2
expressly left Soria-Garibay’s request for voluntary departure to the IJ’s discretion,

the IJ did not err in denying Soria-Garibay’s request.

      PETITION DENIED.




                                          3
                                                                               FILED
Soria-Garibay v. Lynch, No. 12-72310                                           JUL 21 2015
IKUTA, Circuit Judge, concurring.                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

      The majority errs in declining to answer the question raised by the parties:

whether the government’s stipulation to a grant of voluntary departure under 8

C.F.R. § 1240.26(b)(2) deprives the IJ of discretion to deny that form of relief.

      The majority’s ruling elides the fact that the parties offer two competing

interpretations of § 1240.26(b)(2). Under Soria-Garibay’s interpretation of this

regulation, when DHS makes a stipulation under § 1240.26(b)(2), as it did here, the

IJ has a mandatory duty to grant voluntary departure to the alien, regardless of any

qualifications DHS tries to include in its stipulation. The government offers a

different interpretation of § 1240.26(b)(2): it claims that DHS’s stipulation merely

allows the IJ to consider an otherwise untimely request for voluntary departure, but

does not deprive the IJ of the discretion to grant or deny such relief.

      The majority holds that we need not reach this interpretative question

because “DHS made clear that the purpose of its § 1240.26(b)(2) stipulation was

only to allow the IJ to consider Soria-Garibay’s otherwise untimely request for

voluntary departure.” Maj. Op. at 2. But this ruling sub silentio adopts DHS’s

interpretation. If Soria-Garibay’s interpretation were correct, DHS’s remarks

about its intent in making the stipulation under § 1240.26(b)(2) would be legally

insignificant.
      Rather than implicitly deciding the interpretative question before us, I would

make our holding express by deferring to the BIA’s reasonable interpretation of the

regulation. When the BIA interprets its own ambiguous regulation, this

interpretation “controls so long as it is reasonable, that is, so long as the

interpretation sensibly conforms to the purpose and wording of the regulations.”

Lezama-Garcia v. Holder, 666 F.3d 518, 525 (9th Cir. 2011) (internal quotation

marks omitted). Here, § 1240.26(b)(1)(ii) provides that if an alien makes an

untimely request for voluntary departure, the IJ is barred from granting such relief

unless DHS stipulates to such relief under § 1240.26(b)(2). But as explained

elsewhere in the regulations, when DHS stipulates to such relief under

§ 1240.26(b)(2), it “[j]oin[s] in a motion asking the immigration judge to permit

voluntary departure.” 8 C.F.R. § 240.25. Reading these regulations together, the

BIA could reasonably determine that when DHS made the stipulation required

under § 1240.26(b)(2), the IJ retained discretion to deny a grant of voluntary

departure, as it did here.

      Because I would defer to the BIA’s interpretation of § 1240.26(b)(2), and

uphold the IJ’s exercise of discretion, I concur in the result only.




                                            2
