EBER BALAN-BARRERA V. LORETTA E. LYNCH, No. 14-73108 (9th Cir. 2016)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS NOV 22 2016 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT EBER BALAN-BARRERA, Petitioner, No. 14-73108 Agency No. A201-289-877 v. MEMORANDUM* LORETTA E. LYNCH, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted November 16, 2016** Before: LEAVY, BERZON, and MURGUIA, Circuit Judges. Eber Balan-Barrera, a native and citizen of Guatemala, petitions 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 * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 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. Balan-Barrera 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 Balan-Barrera’s final order of removal rendered him ineligible for the waiver. However, the BIA abused its discretion in denying Balan-Barrera’s 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. PETITION FOR REVIEW GRANTED; REMANDED. 2 14-73108

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