Nikolay Vladimir Ivanov Nora Mkrtychevna Ivanova v. Alberto Gonzales, Attorney General of the United States of America

COLLOTON, Circuit Judge,

concurring in part and dissenting in part.

The court correctly recites our holding in Hailemichael v. Gonzales, 454 F.3d 878, 884 (8th Cir.2006), that before an Immigration Judge grants a motion to reopen filed by the Department of Homeland Security, the IJ must find that the evidence proffered by the DHS was not available and could not have been discovered or presented at the former hearing. See 8 C.F.R. 1003.23(b)(3). In this case, in reviewing the IJ’s decision, the BIA wrote that “[rjegarding the reopening grant, ... the Immigration Judge has discretion to reopen cases even on his own motion at any time. 8 C.F.R. § 1003.23(b)(1). On the facts of this case, we find no abuse of his discretion by the Immigration Judge in reopening.” (Add. at 40). Because we consider the reasoning of the BIA and the IJ together, Madjakpor v. Gonzales, 406 F.3d 1040, 1044 (8th Cir.2005), it seems that the BIA’s invocation of the IJ’s authority to reopen on his own motion may have provided a basis to uphold the agency’s action, see Rana v. Gonzales, 175 Fed.Appx. 988, 993-94 (10th Cir.2006), but the government expressly declined to rely on this authority when given an opportunity. Ante, at 610-11 n. 4. Under those circumstances, and given the ambiguity in the agency’s written decisions, I concur with the court that the IJ’s decision to reopen the proceedings should not be upheld unless the evidence at issue was previously unavailable and undiscoverable. Rather than decide that question in the first instance, however, I would grant the petition for review and remand the case to the *613agency with directions to address whether the evidence considered on the motion to reopen satisfies the criteria of 8 C.F.R. § 1008.23(b)(3). See Hailendchael, 454 F.3d at 884; see generally INS v. Ventura, 537 U.S. 12, 16-17, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam).