Leticia Osegueda De Alfaro v. Loretta E. Lynch

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 16 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LETICIA OSEGUEDA DE ALFARO, No. 14-72679
Petitioner, Agency No. A087-331-571
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted July 7, 2016
Pasadena, California
Before: FERNANDEZ, CLIFTON, and FRIEDLAND, Circuit Judges.
Petitioner Leticia Osegueda de Alfaro petitions for review of the dismissal
by the Board of Immigration Appeals (“BIA”) of her appeal from an Immigration
Judge’s denial of her motion to reopen. We review for an abuse of discretion, De
Martinez v. Ashcroft, 374 F.3d 759, 761 (9th Cir. 2004), and grant the petition for
review.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
In her motion, Petitioner sought reopening of her removal proceedings to
pursue a new provisional unlawful presence waiver, a so-called I-601A waiver,
under a rule that took effect after she had agreed to voluntary departure. See 8
C.F.R. § 212.7. The BIA indicated that the law precluded reopening, which
appears to be contrary to a regulation providing that the BIA always has discretion
to reopen proceedings. 8 C.F.R. § 1003.2(a). Indeed, the Government’s position
at oral argument was that the BIA had discretion and that the BIA had exercised
that discretion by denying reopening. In light of the Government’s concession
that reopening is a matter of discretion, the BIA’s apparent failure to recognize its
discretionary authority and then to consider whether to grant or deny reopening as
a matter of discretion warrants remand. See Cerezo v. Mukasey, 512 F.3d 1163,
1166 (9th Cir. 2008) (holding that it is an abuse of discretion to make an error of
law); see also Singh v. Holder, 771 F.3d 647, 653 (9th Cir. 2014) (“Because the
Board had authority to reopen under § 1003.2(a), the Board’s denial of [the
petitioner’s] motion to reopen on jurisdictional grounds was legal error, and is
alone sufficient reason to grant [the petitioner’s] petition for review.”).
We therefore grant the petition for review and remand for further
proceedings.
2
GRANTED and REMANDED.
3