Opinion
No. 14-71921
11-22-2016
GUSTAVO BERMUDEZ-BARAJAS, Petitioner, v. LORETTA E. LYNCH, Attorney General, Respondent.
NOT FOR PUBLICATION
Agency No. A099-628-622 MEMORANDUM On Petition for Review of an Order of the Board of Immigration Appeals Before: LEAVY, BERZON, and MURGUIA, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
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 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.