UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAFAEL MARTINEZ COYT,
ERIC H. HOLDER JR., Attorney
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
October 5, 2009—San Francisco, California
Filed January 20, 2010
Before: Ferdinand F. Fernandez and Sidney R. Thomas,
Circuit Judges, and Ann Aldrich,* District Judge.
Opinion by Judge Thomas
*The Honorable Ann Aldrich, Senior United States District Judge for
the Northern District of Ohio, sitting by designation.
Robert Bradford Jobe, San Francisco, California, on behalf of
petitioner Rafael Martinez Coyt.
Eric Warren Marsteller, Washington, DC, on behalf of
respondent Eric H. Holder Jr.
THOMAS, Circuit Judge:
In this petition for review, we consider whether the Board
of Immigration Appeals (“BIA”) may deem a motion to
reopen or reissue withdrawn by operation of law when the
government removes a petitioner before the BIA has ruled on
MARTINEZ COYT v. HOLDER
the motion. We conclude that it cannot do so, and we grant
the petition for review.
Rafael Martinez Coyt entered the United States at San Ysi-
dro, California without inspection in 1984. In 2001, he was
served with a Notice to Appear charging him with removabil-
ity as an alien present who had not been admitted or paroled.
Martinez Coyt conceded removability, but applied for cancel-
lation of removal, or, in the alternative, voluntary departure.
In 2003, the immigration judge (“IJ”) found that Martinez
Coyt had no disqualifying criminal convictions, had been con-
tinuously physically present for ten years, and was of good
moral character during that time. She denied cancellation,
however, finding that Martinez Coyt was healthy and had
extensive family ties in Mexico, had not shown more than
mere loss of current employment, or the inability to maintain
his present standard of living, and had not shown any compel-
ling educational or me