Santokh Singh Parihar v. ERIC H. HOLDER Jr., Attorney General

This disposition isn’t appropriate for publication and isn’t precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SANTOKH SINGH PARIHAR,
Petitioner,
v.
ERIC H. HOLDER Jr., Attorney
General,
Respondent.
No. 08-70894
Agency No. A077-596-351
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 6, 2012
Pasadena, California
Before: KOZINSKI, Chief Judge, REINHARDT and THOMAS, Circuit
Judges.
Santokh Parihar petitions for review of the Board of Immigration Appeals’s
(“BIA”) decision to deny his motion to reopen. Because the BIA failed to address
all of Parihar’s arguments, we remand.
FILED
FEB 01 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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page 2
1. The BIA denied Parihar’s motion to reopen as untimely. Parihar had
argued to the BIA that the motion was late due to ineffective assistance of counsel
(“IAC”). His counsel had filed the motion with the immigration judge, not with
the BIA, and, in any case, the misfiling was after the filing deadline. The BIA
considered his motion to reopen as having been filed with the BIA, but denied the
motion as untimely. The BIA’s concession did not moot Parihar’s claim that the
motion was late because of IAC. See Iturribarria v. INS, 321 F.3d 889, 898 (9th
Cir. 2003). Nor did the BIA address this IAC claim. Because we may not decide
this claim in the first instance, we remand for the BIA to do so. See Montes-Lopez
v. Gonzales, 486 F.3d 1163, 1165 (9th Cir. 2007).
2. Parihar also claims the BIA should reopen his case because he’s entitled
to adjustment of status by virtue of having been approved for an alien relative visa.
The BIA hasn’t addressed this claim yet. We may not take up the issue in the first
instance. Id. The BIA should address Parihar’s eligibility for adjustment of status
on remand if it finds that the deadline for Parihar’s motion to reopen was tolled
because of IAC.

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page 3
3. Parihar’s motion to reopen also alleges IAC and due process claims
because he wasn’t provided an interpreter at his asylum hearing. The BIA did
address these claims, citing evidence of Parihar’s facility with English—e.g., that
he communicated with his attorney in English and that his asylum application form
indicated he was fluent—and his decision to proceed in English at multiple
hearings, including the hearing in question. The BIA didn’t abuse its discretion in
rejecting these claims. See Lara-Torres v. Ashcroft, 383 F.3d 968, 972 (9th Cir.
2004); Maravilla Maravilla v. Ashcroft, 381 F.3d 855, 858 (9th Cir. 2004).
The petition for review is GRANTED and the matter is REMANDED to
the BIA for proceedings consistent with this opinion.

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