Eber Balan-Barrera v. LORETTA E. LYNCH, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EBER BALAN-BARRERA,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
No. 14-73108
Agency No. A201-289-877
MEMORANDUM*
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
FILED
NOV 22 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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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.
14-73108 2

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