Santos Benitez 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NOT FOR PUBLICATION FILED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

SANTOS NOEL BENITEZ, No. 14-73614

Petitioner, Agency No. A094-457-760

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 Santos Noel Benitez, a native and citizen of El Salvador, petitions

for review of an order of the Board of Immigration Appeals (BIA) dismissing his

appeal from an immigration judge’s decision denying his motion to reopen

removal proceedings. 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

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
petition for review and remand for further proceedings.

Petitioner moved to reopen so that he could pursue an I-601A provisional

waiver of inadmissibility pursuant to 8 C.F.R. § 212.7. With respect to an

individual like Benitez who has been in removal proceedings, such a waiver is

available only if the agency has administratively closed proceedings, instead of

entering a removal order. 8 C.F.R. §§ 212.7(e)(3)(ii), (4)(v); see also Provisional

Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives, 78

Fed. Reg. 536, 545 (Jan. 3, 2013).

The BIA correctly noted that Petitioner was ordered removed, rendering him

presently ineligible for the waiver. The BIA abused its discretion in denying

Benitez’s motion to reopen, however, because it appears not to have considered

whether Benitez was entitled to the requested relief as a matter of discretion. See

8 C.F.R. § 1003.2(a); Singh, 771 F.3d at 653 (holding that the Board’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 § 1003.2(a)); see also Franco-

Rosendo v. Gonzales, 454 F.3d 965, 967-68 (9th Cir. 2006) (remanding to the BIA

for further proceedings on the basis of the BIA’s failure to weigh favorable and

unfavorable factors and to consider the petitioner’s evidence in determining

2
whether reopening is appropriate). We therefore grant the petition and remand for

further proceedings.

PETITION FOR REVIEW GRANTED and REMANDED.