
    Jose Reyes CHAVEZ-REGALADO, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
    No. 04-73632.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted Aug. 9, 2007 .
    Filed Aug. 14, 2007.
    J. Jack Artz, Esq., Norwalk, CA, for Petitioner.
    CAC-Distriet Counsel, Esq., Office of the District Counsel, Department of Homeland Security, Los Angeles, CA, Ronald E. Lefevre, Chief Counsel, Office of the District Counsel, Department of Homeland Security, San Francisco, CA, Richard M. Evans, Esq., Nancy E. Friedman, Esq., DOJ — U.S. Department of Justice, Civil Div./Office of Immigration Lit., Carol A. Barthel, DOJ — U.S. Department of Justice, Tax Division, Washington, DC, for Respondent.
    Before: BERZON and IKUTA, Circuit Judges, and SINGLETON , Chief District Judge.
    
      
       This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
    
    
      
       The Honorable James K. Singleton, United States District Judge for the District of Alaska, sitting by designation.
    
   MEMORANDUM

Jose Reyes Chavez-Regalado petitions this court for review of the Board of Immigration Appeals’ (“BIA”) decision which (through a lengthy chain of earlier decisions) resulted in a denial of Chavez-Regalado’s request to reopen his deportation proceedings.

The BIA erred in affirming the IJ’s holding that Chavez-Regalado’s motion to reopen was barred by 8 CFR § 3.23(b) [now 8 CFR § 1003.23(b)(1) ] because Chavez-Regalado had departed the United States before filing his motion to reopen. Section 1003.23(b)(1) applies only to a person who departs the United States while the person is the subject of deportation proceedings. See Lin v. Gonzales, 473 F.3d 979, 982 (9th Cir.2007). Because Chavez-Regalado was no longer subject to deportation proceedings when he departed the United States, § 1003.23(b)(1) did not preclude the IJ’s consideration of his motion to reopen. Likewise, the BIA erred in holding that Chavez-Regalado was not eligible for relief under the terms of 8 U.S.C. § 1231(a)(5). There was no evidence in the administrative record that the government has taken the steps outlined in 8 CFR § 241.8 such that the bar would apply. See Lin, 473 F.3d at 982-83.

Petition Granted. 
      
       xhis disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
     