                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 10 2009

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




                             FOR THE NINTH CIRCUIT



JULIO ROBERT PEREZ; ANA MARIA                    No. 05-74384
ZAMORA,
                                                 Agency Nos. A074-817-490
             Petitioners,                                   A079-534-787

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

             Respondent.



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

                            Submitted December 8, 2009 **
                              San Francisco, California

Before: TASHIMA, GRABER, and BYBEE, Circuit Judges.

       Julio Robert Perez, a native and citizen of Guatemala, and his wife, Ana

Maria Zamora, a native and citizen of Mexico, petition for review of the Board of




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
Immigration Appeals’ order denying their motion to reopen. We grant the petition

for review and remand for further proceedings.

       The BIA failed to consider petitioners’ contention that because they failed to

post the voluntary bond required by 8 U.S.C. § 1229c(b)(3), they are not subject to

the penalties of § 1229c(d)(1). See Sagaydak v. Gonzales, 405 F.3d 1035, 1040

(9th Cir. 2005) (“[T]he BIA [is] not free to ignore arguments raised by a

petitioner.”). Moreover, although the BIA earlier affirmed and adopted an

immigration judge’s decision detailing multiple reasons for denying petitioners’

application for relief from removal, the BIA cited only 8 U.S.C. § 1229c(b)(3) in

denying petitioners’ motion to reopen. See Navas v. INS, 217 F.3d 646, 658 n.16

(9th Cir. 2000) (“[T]his court cannot affirm the BIA on a ground upon which it did

not rely.”).

       We therefore remand to the BIA to reconsider petitioners’ motion to reopen,

noting the BIA’s intervening case law. See In re Diaz-Ruacho, 24 I. & N. Dec. 47,

47 (B.I.A. 2006) (“[A]n alien who fails to meet the voluntary departure bond

requirement is not subject to the penalties of [8 U.S.C. § 1229c(d)(1)].”); see

generally INS v. Orlando Ventura, 537 U.S. 12, 16-18 (2002) (per curiam).

       PETITION FOR REVIEW GRANTED; REMANDED.




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