Lina Ambasa Casey 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NOT FOR PUBLICATION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
LINA AMBASA CASEY,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 05-73712
Agency No. A041-251-316
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 27, 2011**
Before: SILVERMAN, W. FLETCHER, and MURGUIA, Circuit Judges.
Lina Ambasa Casey, a native and citizen of the Philippines, petitions for
review of the Board of Immigration Appeals’ (“BIA”) orders dismissing her appeal
from an immigration judge’s deportation order and denying her motion to reopen.
Under the REAL ID Act of 2005, we construe Casey’s transferred habeas petition
FILED
OCT 6 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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05-73712 2
as a petition for review, and we have jurisdiction under 8 U.S.C. § 1252. See
Martinez-Rosas v. Gonzales, 424 F.3d 926, 928-29 (9th Cir. 2005). We review de
novo constitutional claims, Khan v. Holder, 584 F.3d 773, 776 (9th Cir. 2009), and
we grant the petition for review.
The BIA violated Casey’s equal protection rights by denying section 212(c)
relief on the basis that she was in deportation proceedings. See Servin-Espinoza v.
Ashcroft, 309 F.3d 1193, 1196-99 (9th Cir. 2002) (BIA’s administrative policy of
applying section 440(d) of the Antiterrorism and Effective Death Penalty Act of
1996 to bar section 212(c) relief against deportable but not excludable aliens
during the time period between May 14, 1997, and June 7, 1999, violates equal
protection). Accordingly, we remand to give Casey “the same opportunity to apply
for § 212(c) relief that excludable aliens were given.” Id. at 1199. In light of our
disposition, we do not reach the issue of whether AEDPA § 440(d) applies
retroactively to Casey. The government’s mootness argument is unpersuasive.
PETITION FOR REVIEW GRANTED; REMANDED.

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