FILED NOT FOR PUBLICATION NOV 02 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT EVA MEDINA-RODRIGUEZ, No. 09-73545 Petitioner, Agency No. A093-237-665 v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted August 10, 2018 Pasadena, California Before: CLIFTON and CHRISTEN, Circuit Judges, and RUFE,** District Judge. Petitioner Eva Medina-Rodriguez petitions for review of the decision of the Board of Immigration Appeals denying her motion to reconsider its earlier decision. The BIA previously denied her motion to reopen removal proceedings to * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Cynthia M. Rufe, United States District Judge for the Eastern District of Pennsylvania, sitting by designation. apply for adjustment of status. We grant the petition and remand to the BIA for further consideration. An applicant who fails to depart within the granted period of voluntary departure is ineligible for ten years for adjustment of status as a matter of law. 8 U.S.C. § 1229c(d)(1). In her motion to reconsider, Medina-Rodriguez contended that her failure to post the bond for voluntary departure exempts her from the consequences of failing to depart. See In Re Diaz-Ruacho, 24 I. & N. Dec. 47, 47 (BIA 2006) (finding that because “the posting of a voluntary departure bond is a condition precedent to permission to depart voluntarily at the conclusion of a removal proceeding . . . an alien who fails to meet the voluntary departure bond requirement is not subject to the penalties” of the INA). The BIA accepted that “if the respondent did not post her voluntary departure bond, she would not be subject to the penalties for failing to depart.” However, the BIA seemed to find dispositive the fact that “respondent failed to submit with her motion to reopen an affidavit stating that she did not post her voluntary departure bond.” Motions to reopen must be “supported by affidavits or other evidentiary material.” 8 U.S.C. § 1229(a)(7)(B). However, “the BIA retains the ability to waive procedural errors, and has done so when the circumstances warrant such action.” Konstantinova v. I.N.S., 195 F.3d 528, 530 (9th Cir. 1999). In Konstantinova, the 2 alleged procedural defect was a failure to include an I-485 with a motion to remand. Id. at 529-30. Similarly, Medina-Rodriguez here failed to include an affidavit to support her claim. Because “facts presented in affidavits supporting a motion to reopen must be accepted as true unless inherently unbelievable,” Bhasin v. Gonzales, 423 F.3d 977, 987 (9th Cir. 2005), Medina-Rodriguez’s failure to include an affidavit here is a procedural defect the BIA could have waived. The government did not refute the factual claim made by Medina-Rodriguez before the BIA.1 Even before this court, the government did not dispute the factual accuracy of her claim. Its position was that it did not know one ...
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