Tadevosyan v. Eric H. Holder, Jr. ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MASIS TADEVOSYAN, No. 07-75087
Petitioner,
Agency No.
v. A097-103-077
ERIC H. HOLDER, JR., Attorney
General,
Respondent.
MASIS TADEVOSYAN, No. 08-71791
Petitioner,
Agency No.
v. A097-103-077
ERIC H. HOLDER, JR., Attorney
General,
Respondent.
MASIS TADEVOSYAN, No. 08-73437
Petitioner,
Agency No.
v. A097-103-077
ERIC H. HOLDER, JR., Attorney
General, OPINION
Respondent.
2 TADEVOSYAN V. HOLDER
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
February 6, 2014—Pasadena, California
Filed February 26, 2014
Before: Harry Pregerson, Michael R. Murphy,*
and Marsha S. Berzon, Circuit Judges.
Opinion by Judge Berzon
SUMMARY**
Immigration
The panel granted Masis Tadevosyan’s petition for review
of the Board of Immigration Appeals’ denial of his motion to
reopen his removal proceedings after he married a United
States citizen and applied for a visa and adjustment of status.
The panel held that the BIA abused its discretion, whether
because it based denial purely on the Department of
Homeland Security’s opposition to the motion to reopen or on
the merits of DHS’ contention that Tadevosyan failed to
*
The Honorable Michael R. Murphy, Senior Circuit Judge for the U.S.
Court of Appeals for the Tenth Circuit, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
TADEVOSYAN V. HOLDER 3
establish that he was not a public charge. The panel held that
the BIA improperly accorded controlling weight to the fact
that DHS opposed reopening, without analyzing whether the
basis of the opposition was correct. The panel also held that
the BIA abused its discretion because it failed to provide any
reasoned explanation for its decision.
COUNSEL
Cheri Attix (argued), Law Office of Cheri Attix, San Diego,
California, for Petitioner.
Jesse Lloyd Busen (argued), Trial Attorney, Tony West,
Assistant Attorney General, and Erica B. Miles, Senior
Litigation Counsel, United States Department of Justice,
Office of Immigration Litigation, Civil Division, Washington,
D.C., for Respondent.
OPINION
BERZON, Circuit Judge:
After Masis Tadevosyan was ordered removed from the
country for an immigration violation, he married an American
citizen and applied for a visa and adjustment of status. The
Board of Immigration Appeals (BIA) refused to reopen his
removal proceedings. Our question is whether in doing so,
the BIA improperly relied on the fact of the Department of
Homeland Security’s (DHS) opposition to his motion, rather
than on the merits of the motion, or otherwise abused its
discretion in deciding the motion. We grant the petition for
4 TADEVOSYAN V. HOLDER
review of the BIA’s decision and remand for further
proceedings.1
I. Background
Tadevosyan, a native of Iran and citizen of Armenia,
entered the United States in May 2002 on a non-immigrant
visa permitting him to remain in the country until later that
year. After he overstayed the visa’s expiration date, he was
placed in removal proceedings, and an immigration judge
ordered his removal to Armenia.
Tadevosyan appealed the removal order to the BIA.
While his appeal was pending, Tadevosyan married Lyubov
Smolyanyuk, a United States citizen. Smolyanyuk filed an I-
130 petition for a visa for Tadevosyan.
The BIA then affirmed the removal order. Tadevosyan
filed a timely motion to reopen, asking the BIA to allow him
to pursue adjustment of status through the pending I-130
petition filed by his wife. Attached to the motion were copies
of the I-130 petition; an I-485 application for adjustment of
status; and two I-864 affidavits of support, one from
Smolyanyuk and a second from a joint sponsor, Norik
1
Tadevosyan initially also sought review of the BIA’s November 29,
2007 order affirming an immigration judge’s denial of his claims for
asylum, withholding of removal, and relief under the Convention against
Torture, and of the BIA’s July 8, 2008 decision denying his second motion
to reopen. He no longer pursues those petitions. Accordingly, we dismiss
those petitions for review.
TADEVOSYAN V. HOLDER 5
Abrahamian.2 Smolyanyuk’s affidavit represented that she
and Tadevosyan had not earned any income in the prior tax
year; Abrahamian’s attested that his income in the last tax
year was $22,211. Abrahamian attached photocopies of his
2006 Federal and state tax return forms, which showed an
adjusted gross income of $22,211, and certified under penalty
of perjury in the affidavit that the Federal income tax return
was a true copy of the return filed with the Internal Revenue
Service. Abrahamian did not include copies of his federal W-
2 forms, but did submit with his California tax return a
“Schedule W-2 CG,” which contained the same information
as his W-2 forms.
DHS opposed Tadevosyan’s motion to reopen. It argued
that Tadevosyan had not shown that the I-130 petition had
been approved and thus that there was a visa available for
Tadevosyan at this time. DHS further contended that
Tadevosyan had not submitted sufficient evidence to establish
that he was not a public charge, because “the joint sponsor
has not provided any proof, such as Forms W-2s, letters,
paycheck stubs, or financial statements, to support the income
stated on his 2006 federal income tax return.” (error in
original). DHS did not address Abrahamian’s submission of
the Schedule W-2 CG.
The BIA denied Tadevosyan’s motion to reopen on
March 27, 2008, stating,
2
If the relative sponsoring the visa application is unable to meet the
minimum income requirement to demonstrate income sufficient to
maintain the immigrant, the immigrant may submit an affidavit of support
from another individual, called a joint sponsor, who is able to meet that
requirement and who agrees to support the immigrant. 8 C.F.R.
§§ 213a.2(c)(2)(iii)(A)(2), (C).
6 TADEVOSYAN V. HOLDER
In this case, the record reflects that respondent
does not have an approved immediate relative
visa petition, and the DHS opposes his motion
in light of the absence of evidence to establish
that he is not inadmissible as a public charge.
In this regard, as noted by DHS counsel, while
the respondent has provided affidavits of
support [from] his wife and a joint sponsor,
his wife currently has no income and the joint
sponsor neglected to submit supporting
documentation for the reported income on his
income tax return. As such, consistent with
Matter of Velarde, 23 I&N Dec. 253 (BIA
2002), the DHS’ opposition is sufficient to
require a denial of the respondent’s motion.3
While the appeals before this Court were pending, the
United States Citizenship and Immigration Service (USCIS)
approved the I-130 visa petition Smolyanyuk filed on
Tadevosyan’s behalf.
II. Discussion
The BIA’s “denial of a motion to reopen or reconsider”
is reviewed “for abuse of discretion.” Salta v. I.N.S.,
314 F.3d 1076, 1078 (9th Cir. 2002) (citing Singh v. I.N.S.,
3
Tadevosyan later filed a motion to reconsider and a renewed motion to
reopen. Among other things, Tadevosyan submitted the couple’s 2007
income tax returns, showing that their adjusted gross income then was
$18,947. After the government opposed the motions, the BIA denied
them.
As noted, see supra n.1, we are dismissing the petition challenging
that denial, as Tadevosyan has abandoned it.
TADEVOSYAN V. HOLDER 7
213 F.3d 1050, 1052 (9th Cir. 2000)). “The BIA abuses its
discretion when it acts ‘arbitrarily, irrationally, or contrary to
the law,’” and “when it fails to provide a reasoned
explanation for its actions.” Movsisian v. Ashcroft, 395 F.3d
1095, 1098 (9th Cir. 2005) (citations omitted). We hold that
whether we read the BIA’s decision as based purely on the
DHS’s opposition or as reaching the merits of the public
charge issue, it abused its discretion in denying the motion to
reopen.
A.
At the time that the BIA rejected Tadevosyan’s motion,
it was addressing motions to reopen to pursue adjustment of
status applications based on an unadjudicated visa petition
filed by a United States citizen or lawful permanent resident
spouse under the standards set forth in Matter of Velarde-
Pacheco, 23 I. & N. Dec. 253 (BIA 2002) (en banc). Velarde
replaced an earlier policy, established in Matter of Arthur,
20 I. & N. Dec. 475 (BIA 1992), uniformly to deny such
motions. Velarde, 23 I. & N. Dec. at 255.
In Velarde, the BIA held that, even if an I-130 was still
pending,
a properly filed motion to reopen may be
granted, in the exercise of discretion, to
provide an alien an opportunity to pursue an
application for adjustment where the
following factors are present: (1) the motion
is timely filed; (2) the motion is not
numerically barred by the regulations; (3) the
motion is not barred by Matter of Shaar,
21 I&N Dec. 541 (BIA 1996), or on any other
8 TADEVOSYAN V. HOLDER
procedural grounds; (4) the motion presents
clear and convincing evidence indicating a
strong likelihood that the respondent’s
marriage is bona fide; and (5) the Service
either does not oppose the motion or bases its
opposition solely on Matter of Arthur . . .
Id. at 256. The BIA noted that this decision did not “require
Immigration Judges to reopen proceedings pending
adjudication of an I-130 visa petition in every case in which
the respondent meets all five of the aforementioned factors,”
and that there may be another valid reason for an Immigration
Judge to deny the motion, even if these five factors are met.
Id. at 257. Only the fifth Velarde factor is at issue here.
Most of the BIA members who did not join the majority
opinion in Velarde understood its articulation of the fifth
factor to require denial whenever the Service opposed the
motion to reopen, unless solely based on Arthur. Board
Member Pauley, in his dissent, joined by six other members
of the Board, stated, “As I read the opinion, the Service is
required only to register its opposition to the alien’s motion.
The Service is not required to state the ground(s) for its
opposition.” Id. at 268. He observed that, as a result, if DHS
“wishes to preserve the status quo ante, it need only adopt a
policy of filing a one-sentence ‘Opposition’ to motions to
reopen that would previously have been barred under Matter
of Arthur. . .” Id. at 268–69. In concurring with the result of
the majority, Board Member Rosenberg emphatically rejected
“the degree of deference extended to [DHS] under the fifth
condition articulated in the majority opinion.” Id. at 264.
She refused to “believe that [DHS] opposition is an
appropriate ‘condition’ that, as a rule, should result in denial
of a motion to reopen,” because the BIA’s “role is to engage
TADEVOSYAN V. HOLDER 9
in impartial and independent adjudications, not to
rubberstamp the preferences of [DHS].” Id. She noted that
the BIA “certainly may consider any substantive objections
to reopening offered by the Service,” but “such objections
should not constitute an insurmountable barrier to granting a
motion to reopen.” Id.The BIA as a whole later recognized that “the fifth factor
in Velarde can be read to be dispositive, and it was so
understood by at least some Board Members at the time.”
Matter of Lamus-Pava, 25 I. & N. Dec. 61, 64 (BIA 2009)
(collecting citations). As a result, in applying Velarde, the
BIA “accorded controlling weight to the opposition of the
DHS in at least some cases.” Id.In 2008, after the BIA’s third decision in this case, the
Ninth Circuit rejected the notion that the BIA could properly
accord dispositive weight to DHS’s opposition to motions to
reopen. See Ahmed v. Mukasey, 548 F.3d 768, 771–72 (9th
Cir. 2008). Ahmed found persuasive the reasoning of the
Second and Sixth Circuits concluding “that the DHS should
not be able to block unilaterally a motion to reopen.” Id. at
772 (citing Melnitsenko v. Mukasey, 517 F.3d 42, 52 (2d Cir.
2008); Sarr v. Gonzales, 485 F.3d 354, 363 (6th Cir. 2007)).
Accordingly, Ahmed held “that when the DHS opposes a
motion to reopen for adjustment of status, the BIA may
consider the objection,” and may deny the motion based on
the merits of the DHS’s objection, “but [it] may not deny the
motion based solely on the fact of the DHS’s objection.” Id.(emphasis added); see also Melnitsenko, 517 F.3d at 52.
Thereafter, in 2009, the BIA brought its own law into
harmony with the Circuit court cases, by clarifying that the
fifth Velarde factor should “not grant DHS ‘veto’ power over
an otherwise approvable Velarde motion,” and “the mere fact
10 TADEVOSYAN V. HOLDER
of a DHS opposition to a motion, in and of itself, should [not]
be dispositive of the motion without regard to the merit of
that opposition.” Lamus, 25 I. & N. Dec. at 64–65.
As we read the BIA’s decision here, it is one of those in
which the BIA improperly accorded controlling weight to the
fact that DHS opposed the motion, without regard to whether
the basis of that opposition was correct. The BIA recounted,
in one sentence, the substance of the DHS’s opposition. It
did not analyze at all whether DHS’s position in opposition
to Tadevosyan’s motion held water. Instead, the BIA
accorded the fact of the objection dispositive weight in
denying the motion, stating, “As such, consistent with Matter
of Velarde, 23 I&N Dec. 253 (BIA 2002), the DHS’
opposition is sufficient to require a denial of the respondent’s
motion.” (emphasis added). This locution does not, as the
government contends, indicate approval of the substance of
DHS’s arguments; rather, as the BIA described its own
decision, it concluded that the fact of opposition, alone,
required denial. Had the BIA meant to convey the meaning
the government suggests, the reference to Velarde, and to
“the DHS’ opposition” as “sufficient to require a denial”
would have been entirely pointless.
Bolstering our understanding of the BIA decision is the
consideration that it was reached during the time period in
which the BIA applied such a truncated approach to some
motions to reopen to pursue adjustment of status applications.
Further, the BIA did not mention, and made no attempt to
apply, the motion to reopen standard, which requires only
establishment of “prima facie eligibility for the relief sought.”
See Young Sun Shin v. Mukasey, 547 F.3d 1019, 1025 (9th
Cir. 2008) (citing 8 C.F.R. § 1003.2(c)(1)). That the BIA did
not do so indicates that it did not regard itself as obliged to
TADEVOSYAN V. HOLDER 11
decide the motion on its merits, but simply accepted DHS’s
opposition as determinative.
We therefore conclude that the BIA abused its discretion
by improperly relying on a de facto DHS veto as dispositive
of Tadevosyan’s motion to reopen.
B.
The BIA’s decision on the motion to reopen would fare
no better were we to adopt the government’s understanding
of that decision. Had the BIA examined the merits of the
motion and applied the correct standard, it could not have
denied that motion, and its decision would still have been an
abuse of discretion.
“A motion to reopen proceedings for the purpose of
submitting an application for relief must be accompanied by
the appropriate application for relief and all supporting
documentation.” 8 C.F.R. § 1003.2(c)(1). But the BIA does
“not require[] a conclusive showing that, assuming the facts
alleged to be true, eligibility for relief has been established.”
Matter of L-O-G-, 21 I. & N. Dec. 413, 418–19 (BIA 1996).
Instead, it is “willing to reopen where the new facts alleged,
when coupled with the facts already of record, satisfy us that
it would be worthwhile to develop the issues further at a
plenary hearing on reopening.” Id. (internal quotation marks
and citation omitted). In other words, a prima facie case for
relief is sufficient to justify reopening, Young Sun Shin,
547 F.3d at 1025, and a “prima facie case is established when
‘the evidence reveals a reasonable likelihood that the
statutory requirements for relief have been satisfied,’” Garcia
v. Holder, 621 F.3d 906, 912 (9th Cir. 2010) (quoting
Ordonez v. I.N.S., 345 F.3d 777, 785 (9th Cir. 2003)).
12 TADEVOSYAN V. HOLDER
Applying that standard here, we begin with the statute and
regulations regarding adjustment of status. Section 245(a) of
the Immigration and Nationality Act (INA) provides that the
Attorney General may adjust the status of certain aliens to
“lawfully admitted for permanent residence if” various
requirements are met, including that the alien “is admissible
to the United States for permanent residence.” INA
§§ 245(a), (2). “In the case of any alien who has been placed
. . . in removal proceedings . . . , the immigration judge
hearing the proceeding has exclusive jurisdiction to
adjudicate any application for adjustment of status the alien
may file.” 8 C.F.R. § 1245.2(a)(1)(i). In some
circumstances, however, DHS counsel may ask the
immigration judge to dismiss the removal proceedings and
allow USCIS, rather than an immigration judge, to adjudicate
an adjustment application. See United States Immigration
and Customs Enforcement Principal Legal Advisor William
J. Howard, Memorandum re: Exercise of Prosecutorial
Discretion to Dismiss Adjustment Cases (Oct. 5, 2005).
An alien is inadmissible if “at the time of application for
admission or adjustment of status, [the alien] is likely at any
time to become a public charge.” INA § 212(a)(4)(A). To
establish that they are not inadmissible as public charges,
most family-sponsored immigrants are required to submit an
I-864 affidavit of support by their visa petitioner and, if the
visa petitioner is unable to meet the income requirement, by
“a joint sponsor,” who does meet that requirement and agrees
to support the immigrant. See INA §§ 212(a)(4)(C), 213A(f);
8 C.F.R. §§ 213a.2(c)(2)(iii)(A)(2), (C). The I-864 affidavit
consists of a “legally enforceable” contract “in which the
sponsor agrees to provide support to maintain the sponsored
alien at an annual income that is not less than 125 percent of
the Federal poverty line . . .” INA §§ 213A(a)(1)(A), (B).
TADEVOSYAN V. HOLDER 13
The INA mandates that, to demonstrate their means to
maintain income, sponsors must ordinarily submit with their
affidavit of support a “certified copy” of their most recent
Federal income tax return, but does not define what a
“certified copy” is. See INA §§ 213A(f)(6)(A)(i), (B); see
also 8 C.F.R. § 213a.2(c)(2)(i)(A) (specifying that either “a
photocopy or an Internal Revenue Service-issued transcript”
may be submitted).4
The regulations elaborate on this requirement, specifying
that if, as Abrahamian did here, “the sponsor submits a
photocopy, rather than an IRS transcript of the tax return(s),”
“the sponsor must also submit as initial evidence . . . all
Forms W-2 (if the sponsor relies on income from
employment) and Forms 1099 (if the sponsor relies on
income from sources documented on Forms 1099).” 8 C.F.R.
§ 213a.2(c)(2)(i)(A) (emphasis added). “The sponsor may
also include as initial evidence: Letter(s) evidencing his or
her current employment and income, paycheck stub(s)
(showing earnings for the most recent six months[)], financial
statements, or other evidence of the sponsor’s anticipated
household income for the” relevant year. Id. (emphasis
added).
The government does not dispute that Abrahamian’s
income level, as shown in his declaration and tax return, was
sufficient to support Tadevosyan at 125 percent of the Federal
4
A tax return transcript is a document issued by the Internal Revenue
Service that shows most information on an individual’s tax return as it was
originally filed, including any accompanying forms and schedules.
See Internal Revenue Service, Tax Return Transcripts
http://www.irs.gov/uac/Tax-Return-Transcripts (last visited Feb. 12,
2014).
14 TADEVOSYAN V. HOLDER
poverty line. Instead, it contends here, as it did before the
BIA, that Tadevosyan failed to offer sufficient evidence that
he was not inadmissible as a public charge, because
Abrahamian did not submit enough documentation to support
the income he reported on his taxes.
This argument fails for a number of reasons. First,
Abrahamian swore under penalty of perjury in his affidavit
that his income was $22,211, an amount that indisputably is
sufficient to support Tadevosyan at the required level. As
Tadevosyan points out, the “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) (citing Limsico v. I.N.S., 951 F.2d 210,
213 (9th Cir. 1991)). No finding was made that anything in
Abrahamian’s affidavit was inherently unbelievable. Indeed,
at oral argument, the government could articulate no reason
that Abrahamian would have inflated his income—and
therefore his tax liability—when he filed his tax returns, let
alone any reason apparent in his affidavit or any other
document in the record to disbelieve that the document
submitted was a true copy of Abrahamian’s tax return. Thus,
the sworn statements in Abrahamian’s affidavit about his
income level, corroborated by the Federal tax returns, which
he attested under penalty of perjury were true copies, made a
sufficient prima facie showing to demonstrate that further
proceedings to develop the relevant facts—including
submission of additional corroborating documents, should the
immigration judge so require—would be worthwhile.
Further, to the extent the government contends that
Abrahamian should have submitted “letters, paycheck stubs,
or financial statements” evidencing his income, such
materials may be submitted but are not mandatory. See
TADEVOSYAN V. HOLDER 15
8 C.F.R. § 213a.2(c)(2)(i)(A); see also USCIS, Form I-864
Instructions 5 (rev. March 22, 2013) (specifically instructing,
in bold, “You are not required to submit this evidence,
however, unless specifically instructed to do so by a
Government official”).
That Abrahamian submitted a copy of his tax return rather
than a transcript and did not submit copies of his actual W-2
forms with his affidavit did not defeat the prima facie
showing that Tadevosyan was not a public charge. The
regulations require that a motion to reopen “must be
accompanied by the appropriate application for relief and all
supporting documentation,” 8 C.F.R. § 1003.2(c)(1)), and that
the sponsor’s W-2 forms be submitted to support an
application for adjustment of status, 8 C.F.R.
§ 213a.2(c)(2)(i). But submission of W-2 forms are not a
statutory requirement and may be waived by the adjudicator.
USCIS’s adjudicators specifically are granted discretion
to excuse the failure to file these forms, and need not request
that the missing forms be submitted: USCIS’s Field Manual
for its adjudicators states,
USCIS may also decide that a request for
evidence is not necessary in a case in which
the sponsor filed a photocopy, instead of a
transcript, but forgot to submit Internal
Revenue Service Forms W-2 or 1099. A
decision not to request additional evidence
will be proper if USCIS concludes that the
evidence of record, taken as a whole, makes it
reasonable to infer that the information on the
tax return is true.
16 TADEVOSYAN V. HOLDER
USCIS, Adjudicator’s Field Manual, § 20.5(e),
http://www.uscis.gov/laws/afm; see also USCIS Acting Dir.
for Domestic Operations Michael Aytes, Memorandum re:
Consolidation of Policy Regarding USCIS Form I-864,
Affidavit of Support 12 (June 27, 2006) (repeating the same
instruction and directing that, when deciding whether to
request additional evidence, the adjudicator should consider
that “the sponsor’s statements about his or her employment
and anticipated income are made under penalty of perjury,”
and “[t]hus, these statements on the Form I-864 are
themselves evidence”). We can conceive of no reason why
an immigration judge would not have the same flexibility as
the USCIS adjudicators as to the required documentation. So,
if reopening were granted, and the removal proceedings were
not terminated to allow USCIS to adjudicate the adjustment
application, an immigration judge would have the opportunity
either to accept further evidence and hear testimony, or,
alternatively, to conclude that the information in
Abrahamian’s tax return as already submitted was adequate,
because Abrahamian’s sworn declaration provided a
sufficient basis to excuse the fact that he did not include his
W-2 forms.5
5
We note that, because of the amount of time that has passed since
Abrahamian executed the affidavit of support, to process the application
for adjustment of status now, an immigration judge may require
submission of additional evidence regarding his present income level,
including a copy of his tax return for the most recent year, regardless of
whether the original submission was adequate at the time it was made.
See 8 C.F.R. § 213a.2(a)(1)(v)(B) (providing that an immigration judge
may, based on the facts of a particular case and “in the exercise of
discretion,” require the submission of such additional evidence “[i]f more
than one year passes between the filing of the affidavit of support . . . and
the hearing . . . concerning the intending immigrant’s application for . . .
adjustment of status”). If such additional evidence were required, the
sufficiency of the affidavit of support would be determined based on the
TADEVOSYAN V. HOLDER 17
The latter possibility has much to commend it here, as
Abrahamian in fact did submit some relevant supporting
evidence here. His California Schedule W-2 CG, a copy of
which was attached to the state tax return copy, reproduced
in full the information from his W-2 forms. DHS did not
discuss this document in its opposition before the BIA or its
answering brief here.6
Accordingly, Abrahamian’s affidavit was sufficient to
make the prima facie showing required when the BIA
considers a motion to reopen. Had the BIA addressed the
issue on the merits—which, as we have explained, it did
not—it would have been an abuse of discretion to deny the
motion.
C.
We note, finally, that given the fairly extensive statutory,
regulatory, and case law material we have just analyzed with
regard to the merits of the motion to reopen, if the BIA had
indeed meant to address those merits, it did not fulfill its
obligation to “provide a reasoned explanation for its actions.”
Movsisian, 395 F.3d at 1098. “Due process and this court’s
precedent require a minimum degree of clarity in dispositive
reasoning and in the treatment of a properly raised argument.”
Su Hwa She v. Holder, 629 F.3d 958, 963 (9th Cir. 2010). In
Rodriguez-Lariz v. I.N.S., for example, where “the BIA
merely repeated petitioners’ claims and summarily dismissed
evidence submitted in response to the request for additional evidence, and
not on the original submission. Id.6
The government stated at oral argument that DHS had not noticed this
document previously.
18 TADEVOSYAN V. HOLDER
them without even purporting to engage in any substantive
analysis or articulating any reasons for its decision,” we
granted the petition and remanded for further proceedings.
282 F.3d 1218, 1227 (9th Cir. 2002). The BIA opinion here,
if read as addressing the merits of the motion to reopen, does
no better. The BIA therefore would have abused its
discretion for a third reason—lack of reasoned
decisionmaking. More tellingly, the failure to provide any
reasoned explanation confirms that the agency denied the
motion because DHS objected, not because it considered
DHS’s objection on the merits and agreed with its reasoning.
III. Conclusion
For the reasons set forth above, Tadevosyan’s petition for
review of the BIA’s March 27, 2008 order denying his
motion to reopen is granted. We remand to the BIA for
further proceedings in light of this decision.
PETITION NO. 08-71791 IS GRANTED AND
REMANDED. PETITION NOS. 07-75087 AND 08-73437
ARE DISMISSED.