Raul Diaz-Aguilar v. ERIC H. HOLDER, Jr., Attorney General

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAUL DIAZ-AGUILAR,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 08-73338
Agency No. A046-280-229
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 10, 2010**
Before: O’SCANNLAIN, HAWKINS, and IKUTA, Circuit Judges.
Raul Diaz-Aguilar, a native and citizen of Mexico, petitions for review of
the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s (“IJ”) removal order. We have jurisdiction under 8 U.S.C.
FILED
AUG 30 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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§ 1252. We review de novo questions of law, Cerezo v. Mukasey, 512 F.3d 1163,
1166 (9th Cir. 2008), and we grant in part and deny in part the petition.
Contrary to the government’s contention, the BIA’s July 22, 2008, order was
the only final order of removal in this case because the BIA previously remanded
for the entry of a removal order, see generally Molina-Camacho v. Ashcroft, 393
F.3d 937 (9th Cir. 2004), overruled by Lolong v. Gonzales, 484 F.3d 1173 (9th Cir.
2007) (en banc), and Diaz-Aguilar filed a timely notice of appeal from the IJ’s
decision on remand, see 8 U.S.C. § 1101(a)(47)(B). It follows that we have
jurisdiction to consider the BIA’s October 16, 2006, decision. See 8 U.S.C.
§ 1252(b)(9).
The BIA erred in concluding that Diaz-Aguilar was ineligible for
cancellation of removal for legal permanent residents based on his failure to satisfy
a continuous physical presence requirement. By its own terms, 8 U.S.C.
§ 1229b(d)(2) applies to the continuous physical presence requirement for
nonpermanent residents seeking cancellation of removal, see 8 U.S.C.
§§ 1229b(b)(1)(A) & (2)(A)(ii), rather than the continuous residence requirement
for legal permanent resident cancellation of removal, see 8 U.S.C. § 1229b(a)(2);
see also Matter of Blancas-Lara, 23 I. & N. Dec. 458, 460 (defining “residence”

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for purposes of 8 U.S.C. § 1229b(a)(2)). We therefore remand for reconsideration
of Diaz-Aguilar’s eligibility for cancellation of removal in light of our disposition.
In his opening brief, Diaz-Aguilar failed to set forth any substantive
argument regarding the IJ’s refusal to reconsider his prior denial of a waiver under
8 U.S.C. § 1227(a)(1)(E)(iii). See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60
(9th Cir. 1996) (issues not supported by argument in a party’s opening brief are
deemed waived).
The government shall bear the costs of this petition for review.
PETITION FOR REVIEW GRANTED in part; DENIED in part;
REMANDED.

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