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Singh v. Holder

United States Court of Appeals, Ninth Circuit

November 13, 2014

TARLOCK SINGH, AKA Tarlochan Singh, Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General, Respondent

Argued and Submitted, September 12, 2014, San Francisco, California

Page 648

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A073-133-622.

SUMMARY[*]

Immigration

Declining to accord deference to the Board of Immigration Appeals' published decision in Matter of Yauri, 25 I. & N. Dec. 103 (BIA 2009), the panel granted a petition for review of the denial of a motion to reopen, and held that the Board has authority to reopen proceedings of an arriving alien who is under a final order of removal in order to afford the alien an opportunity to pursue an adjustment of status application before United States Citizenship and Immigration Services.

The panel explained that the Board's authority to reopen proceedings in this situation is granted, at minimum, by the unambiguous language of 8 C.F.R. § 1003.2(a), which states that " [t]he Board may at any time reopen or reconsider on its own motion any case in which it has rendered a decision." The panel held that the Board's contrary holding in Matter of Yauri contravenes the regulation's plain language and this court's decision in Kalilu v. Mukasey, 548 F.3d 1215 (9th Cir. 2008).

The panel held that 8 C.F.R. § 1003.2(f), which governs the Board's authority to grant a stay of removal, does not restrict the Board's broad power to grant a motion to reopen in any case or suggest in any way that the Board should refrain from reopening proceedings for the purpose of affording an alien the opportunity to pursue relief from removal before another agency.

Because the Board concluded that it lacked authority to reopen proceedings, the panel held that the Board legally erred and abused its discretion. The panel remanded for an exercise of the Board's discretion whether to reopen proceedings.

Zachary Miller Nightingale, Avantika Shastri (argued) and Amalia Margarete Wille, Van Der Hout, Brigagliano & Nightingale, LLP, San Francisco, California; Babak Pourtavoosi, Jackson Heights, New York, for Petitioner.

Blair T. O'Connor (argued), Assistant Director; Remi Da Rocha-Afodu, Attorney; Tony West, Assistant Attorney General, Civil Division; Holly M. Smith, Senior Litigation Counsel, United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for Respondent.

Before: Raymond C. Fisher, Marsha S. Berzon and Morgan Christen, Circuit Judges.

OPINION

Page 649

FISHER, Circuit Judge:

For the second time in six years, we hold that the Board of Immigration Appeals has authority to reopen proceedings of an alien who is under a final order of removal in order to afford the alien an opportunity to pursue an adjustment of status application before United States Citizenship and Immigration Services. See Kalilu v. Mukasey, 548 F.3d 1215, 1217-18 (9th Cir. 2008). This authority is granted, at minimum, by the unambiguous language of 8 C.F.R. ยง 1003.2(a), which states that " [t]he Board may at any time reopen or reconsider on its own motion any case in which it has rendered a decision." Because the Board's contrary ...


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