Juan Martinez -Marroquin v. ALBERTO R. GONZALES , Attorney General

* The Honorable Robert H. Cleland, United States District Judge for the Eastern District of Michigan, sitting
by designation.
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 07a0204p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
J UAN M ARTINEZ -M ARROQUIN ,
Petitioner,
v.
ALBERTO R. GONZALES , Attorney General,
Respondent.
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No. 06-4380
Filed: June 4, 2007
Before: GIBBONS and COOK, Circuit Judges; CLELAND, District Judge.*
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ORDER
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The petitioner seeks judicial review of a decision of the Board of Immigration Appeals
(“BIA”) denying his motion to reopen his removal proceedings and rescind an immigration judge’s
in absentia order of removal. The petitioner’s proof brief was filed on March 26, 2007. The
respondent now moves to remand this case to the BIA to consider the issue of whether the petitioner
carried his burden to demonstrate that the in absentia order of removal should be rescinded pursuant
to 8 U.S.C. § 1229a(b)(5)(C)(ii) because he did not receive notice of the removal hearing. The
petitioner does not oppose the motion.
The effect of a remand is to render the BIA’s decision nonfinal “and hence not judicially
reviewable.” Ren v. Gonzales, 440 F.3d 446, 448 (7th Cir. 2006). A remand will not, however, result
in the loss of the petitioner’s right to judicial review. See Lopez-Ruiz v. Ashcroft, 298 F.3d 886, 887
(9th Cir. 2002). In view of the foregoing circumstances, we find the respondent’s motion to be well
taken. The petitioner is cautioned that if the BIA does not rule in his favor, a new timely petition for
review must be filed.
The motion for remand is GRANTED.
ENTERED BY ORDER OF THE COURT
/s/ Leonard Green
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Clerk
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