FILED
NOT FOR PUBLICATION FEB 22 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
NGHI XUAN TRAN, No. 07-73741
Petitioner, Agency No. A042-184-405
v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 16, 2010 **
Before: FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.
Nghi Xuan Tran, a native and citizen of Vietnam, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s decision denying his special motion to seek § 212(c) relief.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
LA/Research
We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the
denial of a motion to reopen, Avila-Sanchez v. Mukasey, 509 F.3d 1037, 1039 (9th
Cir. 2007), and we grant the petition for review and remand.
We remand to the BIA to explain its reasons for denying Tran’s special
motion to seek § 212(c) relief filed pursuant to 8 C.F.R. § 1003.44(d). See
Mohammed v. Gonzales, 400 F.3d 785, 792 (9th Cir. 2005). The BIA appears to
have denied Tran’s motion because he chose not to file an application for a
§ 212(c) waiver at his hearing in 2003, but does not explain on what grounds this
bars the subsequent filing of a special motion to seek such relief. See 8 C.F.R.
§ 1003.44(d) (“A motion under this section will not be granted with respect to any
conviction where an alien has previously been denied section 212(c) relief by a
immigration judge or by the Board on discretionary grounds.”) (emphasis added).
PETITION FOR REVIEW GRANTED; REMANDED.
LA/Research 2 07-73741