                                                                           FILED
                              NOT FOR PUBLICATION                           MAY 05 2011

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




                              FOR THE NINTH CIRCUIT



MARTIN RAYA REYES, MARIA                          No. 06-75788
ISABEL DE RAYA REYES, and JUAN
RAYA TOVAR,                                       Agency Nos. A075-604-135
                                                              A075-604-136
               Petitioners,                                   A076-715-368

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

               Respondent.



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

                              Submitted April 20, 2011 **

Before:        RYMER, THOMAS, and PAEZ, Circuit Judges.

       Martin Raya Reyes, Maria Isabel de Raya Reyes, and Juan Raya Tovar,

natives and citizens of Mexico, petition for review of the Board of Immigration

Appeals’ (“BIA”) order dismissing their appeal from an immigration judge’s (“IJ”)


          *
             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).
removal order. We have jurisdiction under 8 U.S.C. § 1252. We grant the petition

for review and remand.

      The IJ declined to entertain petitioners’ request to consider additional

evidence in support of their cancellation of removal applications without the

benefit of our decision in Fernandes v. Holder, 619 F.3d 1069, 1074 (9th Cir.

2010) (“[T]he IJ’s jurisdiction on remand from the BIA is limited only when the

BIA expressly retains jurisdiction and qualifies or limits the scope of the remand to

a specific purpose. An articulated purpose for the remand, without any express

limit on scope, is not sufficient to limit the remand such that it forecloses

consideration of other new claims or motions that the IJ deems appropriate or that

are presented in accordance with relevant regulations.”). See also Matter of M-D-,

24 I. & N. Dec. 138, 141-42 (BIA 2007) (an IJ has authority to consider additional

evidence on remand “if it is material, was not previously available, and could not

have been discovered or presented at the former hearing”). We therefore remand

to allow the agency to reconsider petitioners’ request to present additional evidence

in light of the intervening case law.

      In light of our disposition, we do not address petitioners’ remaining

contentions.

      PETITION FOR REVIEW GRANTED; REMANDED.


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