Jimy Antonio Nunez-Castro 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.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JIMY ANTONIO NUNEZ-CASTRO,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 10-70028
Agency No. A095-682-937
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 14, 2013
Pasadena, California
Before: GOODWIN, KLEINFELD, and SILVERMAN, Circuit Judges.
Nunez-Castro petitioned for review of the BIA’s decision denying his
application for asylum. Prior to oral argument, the government informed the court
that Nunez-Castro voluntarily returned to Honduras, which petitioner’s counsel did
FILED
FEB 21 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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not dispute. Since Nunez-Castro left voluntarily and was not “excluded, deported,
or removed,” our holding in Mendez-Alcaraz v. Gonzales, 464 F.3d 842, 844 (9th
Cir. 2006), does not apply.
The facts surrounding Nunez-Castro’s departure are not in the administrative
record, and the BIA never ruled on whether his departure makes this petition moot
or abandoned. See 8 C.F.R. § 1208.8(a) (“An applicant who leaves the United
States without first obtaining advance parole . . . shall be presumed to have
abandoned his or her application under this section.”). We therefore remand to the
BIA to consider the legal effect, if any, of Nunez-Castro’s departure. See
Fernandez–Ruiz v. Gonzales, 468 F.3d 1159, 1170 (9th Cir. 2006). We express no
opinion on the merits of Nunez-Castro’s asylum application.
REMANDED.

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