                                                                           FILED
                              NOT FOR PUBLICATION                           APR 26 2011

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




                              FOR THE NINTH CIRCUIT



CESAR JULIO MEDINA CORADO and                     No. 08-73751
ANA LUISA MEDINA,
                                                  Agency Nos. A072-400-003
               Petitioners,                                   A075-306-757

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

               Respondent.



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

                               Submitted April 5, 2011 **

Before:        B. FLETCHER, CLIFTON, and BEA, Circuit Judges.

       Cesar Julio Medina Corado, a native and citizen of Guatemala, and Ana

Luisa Medina, a native and citizen of Mexico, petition for review of the Board of

Immigration Appeals’ order dismissing their appeal from an immigration judge’s

(“IJ”) decision denying their applications for cancellation of removal. We have

          *
             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).
jurisdiction under 8 U.S.C. § 1252. We review the agency’s continuous physical

presence determination for substantial evidence. Ibarra-Flores v. Gonzales, 439

F.3d 614, 618 (9th Cir. 2006). We grant the petition for review and remand.

      An intervening change in the law requires us to remand on the issue of Ana

Luisa Medina’s continuous physical presence. In Tapia v. Gonzales, 430 F.3d 997,

998 (9th Cir. 2005), we concluded “that being turned away at the border by

immigration officials does not have the same effect as an administrative voluntary

departure and does not itself interrupt the accrual of continuous physical presence.”

It appears from the record that Medina’s departure in 1996 was a border

turnaround or an uninformed voluntary departure, as opposed to a knowing

acceptance of administrative voluntary departure. See id. at 1004; Cf. Gutierrez v.

Mukasey, 521 F.3d 1114, 1117-8 (9th Cir. 2008) (petitioner’s testimony that he had

the opportunity to go before an IJ and chose to depart instead is sufficient to

establish presence-breaking voluntary departure). We therefore grant the petition

for review and remand for further proceedings.

      In light of this disposition, we need not reach petitioners’ remaining

contentions.

      PETITION FOR REVIEW GRANTED; REMANDED.




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