Gustavo Bermudez-Barajas v. Loretta E. Lynch , 670 F. App'x 960 ( 2016 )

FILED
NOT FOR PUBLICATION NOV 22 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GUSTAVO BERMUDEZ-BARAJAS, No. 14-71921
Petitioner, Agency No. A099-628-622
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 16, 2016**
Before: LEAVY, BERZON, and MURGUIA, Circuit Judges.
Gustavo Bermudez-Barajas, a native and citizen of Mexico, petitions pro se
for review of the Board of Immigration Appeals (“BIA”) order denying his motion
to reopen removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
review for abuse of discretion the denial of a motion to reopen. Singh v. Holder,
771 F.3d 647, 650 (9th Cir. 2014). We grant the petition for review and remand.
Bermudez-Barajas moved to reopen so that he could pursue an I-601A
provisional waiver of inadmissibility pursuant to 8 C.F.R. § 212.7(e). At that time,
an individual who had been in removal proceedings was eligible for the waiver
only if the agency had administratively closed proceedings, instead of entering a
removal order. See 8 C.F.R. § 212.7(e)(4) (2013).
The BIA correctly noted that Bermudez-Barajas’ final order of removal
rendered him ineligible for the waiver. However, the BIA abused its discretion in
denying Bermudez-Barajas’ motion to reopen because it appears not to have
considered whether he was entitled to reopening as a matter of discretion. See 8
C.F.R. § 1003.2(a); Singh, 771 F.3d at 653 (the BIA’s denial of a motion to reopen
on jurisdictional grounds was legal error, and thus an abuse of discretion, because
it had authority to reopen under 8 C.F.R. § 1003.2(a)). We therefore grant the
petition and remand for further proceedings.
In light of this disposition, we do not reach Bermudez-Barajas’ remaining
contentions.
PETITION FOR REVIEW GRANTED; REMANDED.
2 14-71921