Tadevosyan v. Eric H. Holder, Jr.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MASIS TADEVOSYAN, No. 07-75087

Petitioner,

Agency No.

v. A097-103-077

ERIC H. HOLDER, JR., Attorney

General,

Respondent.

MASIS TADEVOSYAN, No. 08-71791

Petitioner,

Agency No.

v. A097-103-077

ERIC H. HOLDER, JR., Attorney

General,

Respondent.

MASIS TADEVOSYAN, No. 08-73437

Petitioner,

Agency No.

v. A097-103-077

ERIC H. HOLDER, JR., Attorney

General, OPINION

Respondent.

2 TADEVOSYAN V. HOLDER

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

February 6, 2014—Pasadena, California

Filed February 26, 2014

Before: Harry Pregerson, Michael R. Murphy,*

and Marsha S. Berzon, Circuit Judges.

Opinion by Judge Berzon

SUMMARY**

Immigration

The panel granted Masis Tadevosyan’s petition for review

of the Board of Immigration Appeals’ denial of his motion to

reopen his removal proceedings after he married a United

States citizen and applied for a visa and adjustment of status.

The panel held that the BIA abused its discretion, whether

because it based denial purely on the Department of

Homeland Security’s opposition to the motion to reopen or on

the merits of DHS’ contention that Tadevosyan failed to

*

The Honorable Michael R. Murphy, Senior Circuit Judge for the U.S.

Court of Appeals for the Tenth Circuit, sitting by designation.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

TADEVOSYAN V. HOLDER 3

establish that he was not a public charge. The panel held that

the BIA improperly accorded controlling weight to the fact

that DHS opposed reopening, without analyzing whether the

basis of the opposition was correct. The panel also held that

the BIA abused its discretion because it failed to provide any

reasoned explanation for its decision.

COUNSEL

Cheri Attix (argued), Law Office of Cheri Attix, San Diego,

California, for Petitioner.

Jesse Lloyd Busen (argued), Trial Attorney, Tony West,

Assistant Attorney General, and Erica B. Miles, Senior

Litigation Counsel, United States Department of Justice,

Office of Immigration Litigation, Civil Division, Washington,

D.C., for Respondent.

OPINION

BERZON, Circuit Judge:

After Masis Tadevosyan was ordered removed from the

country for an immigration violation, he married an American

citizen and applied for a visa and adjustment of status. The

Board of Immigration Appeals (BIA) refused to reopen his

removal proceedings. Our question is whether in doing so,

the BIA improperly relied on the fact of the Department of

Homeland Security’s (DHS) opposition to his motion, rather

than on the merits of the motion, or otherwise abused its

discretion in deciding the motion. We grant the petition for

4 TADEVOSYAN V. HOLDER

review of the BIA’s decision and remand for further

proceedings.1

I. Background

Tadevosyan, a native of Iran and citizen of Armenia,

entered the United States in May 2002 on a non-immigrant

visa permitting him to remain in the country until later that

year. After he overstayed the visa’s expiration date, he was

placed in removal proceedings, and an immigration judge

ordered his removal to Armenia.

Tadevosyan appealed the removal order to the BIA.

While his appeal was pending, Tadevosyan married Lyubov

Smolyanyuk, a United States citizen. Smolyanyuk filed an I-

130 petition for a visa for Tadevosyan.

The BIA then affirmed the removal order. Tadevosyan

filed a timely motion to reopen, asking the BIA to allow him

to pursue adjustment of status through the pending I-130

petition filed by his wife. Attached to the motion were copies

of the I-130 petition; an I-485 application for adjustment of

status; and two I-864 affidavits of support, one from

Smolyanyuk and a second from a joint sponsor, Norik

1

Tadevosyan initially also sought review of the BIA’s November 29,

2007 order affirming an immigration judge’s denial of his claims for

asylum, withholding of removal, and relief under the Convention against

Torture, and of the BIA’s July 8, 2008 decision denying his second motion

to reopen. He no longer pursues those petitions. Accordingly, we dismiss

those petitions for review.

TADEVOSYAN V. HOLDER 5

Abrahamian.2 Smolyanyuk’s affidavit represented that she

and Tadevosyan had not earned any income in the prior tax

year; Abrahamian’s attested that his income in the last tax

year was $22,211. Abrahamian attached photocopies of his

2006 Federal and state tax return forms, which showed an

adjusted gross income of $22,211, and certified under penalty

of perjury in the affidavit that the Federal income tax return

was a true copy of the return filed with the Internal Revenue

Service. Abrahamian did not include copies of his federal W-

2 forms, but did submit with his California tax return a

“Schedule W-2 CG,” which contained the same information

as his W-2 forms.

DHS opposed Tadevosyan’s motion to reopen. It argued

that Tadevosyan had not shown that the I-130 petition had

been approved and thus that there was a visa available for

Tadevosyan at this time. DHS further contended that

Tadevosyan had not submitted sufficient evidence to establish

that he was not a public charge, because “the joint sponsor

has not provided any proof, such as Forms W-2s, letters,

paycheck stubs, or financial statements, to support the income

stated on his 2006 federal income tax return.” (error in

original). DHS did not address Abrahamian’s submission of

the Schedule W-2 CG.

The BIA denied Tadevosyan’s motion to reopen on

March 27, 2008, stating,

2

If the relative sponsoring the visa application is unable to meet the

minimum income requirement to demonstrate income sufficient to

maintain the immigrant, the immigrant may submit an affidavit of support

from another individual, called a joint sponsor, who is able to meet that

requirement and who agrees to support the immigrant. 8 C.F.R.

§§ 213a.2(c)(2)(iii)(A)(2), (C).

6 TADEVOSYAN V. HOLDER

In this case, the record reflects that respondent

does not have an approved immediate relative

visa petition, and the DHS opposes his motion

in light of the absence of evidence to establish

that he is not inadmissible as a public charge.

In this regard, as noted by DHS counsel, while

the respondent has provided affidavits of

support [from] his wife and a joint sponsor,

his wife currently has no income and the joint

sponsor neglected to submit supporting

documentation for the reported income on his

income tax return. As such, consistent with

Matter of Velarde, 23 I&N Dec. 253 (BIA

2002), the DHS’ opposition is sufficient to

require a denial of the respondent’s motion.3

While the appeals before this Court were pending, the

United States Citizenship and Immigration Service (USCIS)

approved the I-130 visa petition Smolyanyuk filed on

Tadevosyan’s behalf.

II. Discussion

The BIA’s “denial of a motion to reopen or reconsider”

is reviewed “for abuse of discretion.” Salta v. I.N.S.,

314 F.3d 1076, 1078 (9th Cir. 2002) (citing Singh v. I.N.S.,

3

Tadevosyan later filed a motion to reconsider and a renewed motion to

reopen. Among other things, Tadevosyan submitted the couple’s 2007

income tax returns, showing that their adjusted gross income then was

$18,947. After the government opposed the motions, the BIA denied

them.

As noted, see supra n.1, we are dismissing the petition challenging

that denial, as Tadevosyan has abandoned it.

TADEVOSYAN V. HOLDER 7

213 F.3d 1050, 1052 (9th Cir. 2000)). “The BIA abuses its

discretion when it acts ‘arbitrarily, irrationally, or contrary to

the law,’” and “when it fails to provide a reasoned

explanation for its actions.” Movsisian v. Ashcroft, 395 F.3d

1095, 1098 (9th Cir. 2005) (citations omitted). We hold that

whether we read the BIA’s decision as based purely on the

DHS’s opposition or as reaching the merits of the public

charge issue, it abused its discretion in denying the motion to

reopen.

A.

At the time that the BIA rejected Tadevosyan’s motion,

it was addressing motions to reopen to pursue adjustment of

status applications based on an unadjudicated visa petition

filed by a United States citizen or lawful permanent resident

spouse under the standards set forth in Matter of Velarde-

Pacheco, 23 I. & N. Dec. 253 (BIA 2002) (en banc). Velarde

replaced an earlier policy, established in Matter of Arthur,

20 I. & N. Dec. 475 (BIA 1992), uniformly to deny such

motions. Velarde, 23 I. & N. Dec. at 255.

In Velarde, the BIA held that, even if an I-130 was still

pending,

a properly filed motion to reopen may be

granted, in the exercise of discretion, to

provide an alien an opportunity to pursue an

application for adjustment where the

following factors are present: (1) the motion

is timely filed; (2) the motion is not

numerically barred by the regulations; (3) the

motion is not barred by Matter of Shaar,

21 I&N Dec. 541 (BIA 1996), or on any other

8 TADEVOSYAN V. HOLDER

procedural grounds; (4) the motion presents

clear and convincing evidence indicating a

strong likelihood that the respondent’s

marriage is bona fide; and (5) the Service

either does not oppose the motion or bases its

opposition solely on Matter of Arthur . . .

Id. at 256. The BIA noted that this decision did not “require

Immigration Judges to reopen proceedings pending

adjudication of an I-130 visa petition in every case in which

the respondent meets all five of the aforementioned factors,”

and that there may be another valid reason for an Immigration

Judge to deny the motion, even if these five factors are met.

Id. at 257. Only the fifth Velarde factor is at issue here.

Most of the BIA members who did not join the majority

opinion in Velarde understood its articulation of the fifth

factor to require denial whenever the Service opposed the

motion to reopen, unless solely based on Arthur. Board

Member Pauley, in his dissent, joined by six other members

of the Board, stated, “As I read the opinion, the Service is

required only to register its opposition to the alien’s motion.

The Service is not required to state the ground(s) for its

opposition.” Id. at 268. He observed that, as a result, if DHS

“wishes to preserve the status quo ante, it need only adopt a

policy of filing a one-sentence ‘Opposition’ to motions to

reopen that would previously have been barred under Matter

of Arthur. . .” Id. at 268–69. In concurring with the result of

the majority, Board Member Rosenberg emphatically rejected

“the degree of deference extended to [DHS] under the fifth

condition articulated in the majority opinion.” Id. at 264.

She refused to “believe that [DHS] opposition is an

appropriate ‘condition’ that, as a rule, should result in denial

of a motion to reopen,” because the BIA’s “role is to engage

TADEVOSYAN V. HOLDER 9

in impartial and independent adjudications, not to

rubberstamp the preferences of [DHS].” Id. She noted that

the BIA “certainly may consider any substantive objections

to reopening offered by the Service,” but “such objections

should not constitute an insurmountable barrier to granting a

motion to reopen.” Id.

The BIA as a whole later recognized that “the fifth factor

in Velarde can be read to be dispositive, and it was so

understood by at least some Board Members at the time.”

Matter of Lamus-Pava, 25 I. & N. Dec. 61, 64 (BIA 2009)

(collecting citations). As a result, in applying Velarde, the

BIA “accorded controlling weight to the opposition of the

DHS in at least some cases.” Id.

In 2008, after the BIA’s third decision in this case, the

Ninth Circuit rejected the notion that the BIA could properly

accord dispositive weight to DHS’s opposition to motions to

reopen. See Ahmed v. Mukasey, 548 F.3d 768, 771–72 (9th

Cir. 2008). Ahmed found persuasive the reasoning of the

Second and Sixth Circuits concluding “that the DHS should

not be able to block unilaterally a motion to reopen.” Id. at

772 (citing Melnitsenko v. Mukasey, 517 F.3d 42, 52 (2d Cir.

2008); Sarr v. Gonzales, 485 F.3d 354, 363 (6th Cir. 2007)).

Accordingly, Ahmed held “that when the DHS opposes a

motion to reopen for adjustment of status, the BIA may

consider the objection,” and may deny the motion based on

the merits of the DHS’s objection, “but [it] may not deny the

motion based solely on the fact of the DHS’s objection.” Id.

(emphasis added); see also Melnitsenko, 517 F.3d at 52.

Thereafter, in 2009, the BIA brought its own law into

harmony with the Circuit court cases, by clarifying that the

fifth Velarde factor should “not grant DHS ‘veto’ power over

an otherwise approvable Velarde motion,” and “the mere fact

10 TADEVOSYAN V. HOLDER

of a DHS opposition to a motion, in and of itself, should [not]

be dispositive of the motion without regard to the merit of

that opposition.” Lamus, 25 I. & N. Dec. at 64–65.

As we read the BIA’s decision here, it is one of those in

which the BIA improperly accorded controlling weight to the

fact that DHS opposed the motion, without regard to whether

the basis of that opposition was correct. The BIA recounted,

in one sentence, the substance of the DHS’s opposition. It

did not analyze at all whether DHS’s position in opposition

to Tadevosyan’s motion held water. Instead, the BIA

accorded the fact of the objection dispositive weight in

denying the motion, stating, “As such, consistent with Matter

of Velarde, 23 I&N Dec. 253 (BIA 2002), the DHS’

opposition is sufficient to require a denial of the respondent’s

motion.” (emphasis added). This locution does not, as the

government contends, indicate approval of the substance of

DHS’s arguments; rather, as the BIA described its own

decision, it concluded that the fact of opposition, alone,

required denial. Had the BIA meant to convey the meaning

the government suggests, the reference to Velarde, and to

“the DHS’ opposition” as “sufficient to require a denial”

would have been entirely pointless.

Bolstering our understanding of the BIA decision is the

consideration that it was reached during the time period in

which the BIA applied such a truncated approach to some

motions to reopen to pursue adjustment of status applications.

Further, the BIA did not mention, and made no attempt to

apply, the motion to reopen standard, which requires only

establishment of “prima facie eligibility for the relief sought.”

See Young Sun Shin v. Mukasey, 547 F.3d 1019, 1025 (9th

Cir. 2008) (citing 8 C.F.R. § 1003.2(c)(1)). That the BIA did

not do so indicates that it did not regard itself as obliged to

TADEVOSYAN V. HOLDER 11

decide the motion on its merits, but simply accepted DHS’s

opposition as determinative.

We therefore conclude that the BIA abused its discretion

by improperly relying on a de facto DHS veto as dispositive

of Tadevosyan’s motion to reopen.

B.

The BIA’s decision on the motion to reopen would fare

no better were we to adopt the government’s understanding

of that decision. Had the BIA examined the merits of the

motion and applied the correct standard, it could not have

denied that motion, and its decision would still have been an

abuse of discretion.

“A motion to reopen proceedings for the purpose of

submitting an application for relief must be accompanied by

the appropriate application for relief and all supporting

documentation.” 8 C.F.R. § 1003.2(c)(1). But the BIA does

“not require[] a conclusive showing that, assuming the facts

alleged to be true, eligibility for relief has been established.”

Matter of L-O-G-, 21 I. & N. Dec. 413, 418–19 (BIA 1996).

Instead, it is “willing to reopen where the new facts alleged,

when coupled with the facts already of record, satisfy us that

it would be worthwhile to develop the issues further at a

plenary hearing on reopening.” Id. (internal quotation marks

and citation omitted). In other words, a prima facie case for

relief is sufficient to justify reopening, Young Sun Shin,

547 F.3d at 1025, and a “prima facie case is established when

‘the evidence reveals a reasonable likelihood that the

statutory requirements for relief have been satisfied,’” Garcia

v. Holder, 621 F.3d 906, 912 (9th Cir. 2010) (quoting

Ordonez v. I.N.S., 345 F.3d 777, 785 (9th Cir. 2003)).

12 TADEVOSYAN V. HOLDER

Applying that standard here, we begin with the statute and

regulations regarding adjustment of status. Section 245(a) of

the Immigration and Nationality Act (INA) provides that the

Attorney General may adjust the status of certain aliens to

“lawfully admitted for permanent residence if” various

requirements are met, including that the alien “is admissible

to the United States for permanent residence.” INA

§§ 245(a), (2). “In the case of any alien who has been placed

. . . in removal proceedings . . . , the immigration judge

hearing the proceeding has exclusive jurisdiction to

adjudicate any application for adjustment of status the alien

may file.” 8 C.F.R. § 1245.2(a)(1)(i). In some

circumstances, however, DHS counsel may ask the

immigration judge to dismiss the removal proceedings and

allow USCIS, rather than an immigration judge, to adjudicate

an adjustment application. See United States Immigration

and Customs Enforcement Principal Legal Advisor William

J. Howard, Memorandum re: Exercise of Prosecutorial

Discretion to Dismiss Adjustment Cases (Oct. 5, 2005).

An alien is inadmissible if “at the time of application for

admission or adjustment of status, [the alien] is likely at any

time to become a public charge.” INA § 212(a)(4)(A). To

establish that they are not inadmissible as public charges,

most family-sponsored immigrants are required to submit an

I-864 affidavit of support by their visa petitioner and, if the

visa petitioner is unable to meet the income requirement, by

“a joint sponsor,” who does meet that requirement and agrees

to support the immigrant. See INA §§ 212(a)(4)(C), 213A(f);

8 C.F.R. §§ 213a.2(c)(2)(iii)(A)(2), (C). The I-864 affidavit

consists of a “legally enforceable” contract “in which the

sponsor agrees to provide support to maintain the sponsored

alien at an annual income that is not less than 125 percent of

the Federal poverty line . . .” INA §§ 213A(a)(1)(A), (B).

TADEVOSYAN V. HOLDER 13

The INA mandates that, to demonstrate their means to

maintain income, sponsors must ordinarily submit with their

affidavit of support a “certified copy” of their most recent

Federal income tax return, but does not define what a

“certified copy” is. See INA §§ 213A(f)(6)(A)(i), (B); see

also 8 C.F.R. § 213a.2(c)(2)(i)(A) (specifying that either “a

photocopy or an Internal Revenue Service-issued transcript”

may be submitted).4

The regulations elaborate on this requirement, specifying

that if, as Abrahamian did here, “the sponsor submits a

photocopy, rather than an IRS transcript of the tax return(s),”

“the sponsor must also submit as initial evidence . . . all

Forms W-2 (if the sponsor relies on income from

employment) and Forms 1099 (if the sponsor relies on

income from sources documented on Forms 1099).” 8 C.F.R.

§ 213a.2(c)(2)(i)(A) (emphasis added). “The sponsor may

also include as initial evidence: Letter(s) evidencing his or

her current employment and income, paycheck stub(s)

(showing earnings for the most recent six months[)], financial

statements, or other evidence of the sponsor’s anticipated

household income for the” relevant year. Id. (emphasis

added).

The government does not dispute that Abrahamian’s

income level, as shown in his declaration and tax return, was

sufficient to support Tadevosyan at 125 percent of the Federal

4

A tax return transcript is a document issued by the Internal Revenue

Service that shows most information on an individual’s tax return as it was

originally filed, including any accompanying forms and schedules.

See Internal Revenue Service, Tax Return Transcripts

http://www.irs.gov/uac/Tax-Return-Transcripts (last visited Feb. 12,

2014).

14 TADEVOSYAN V. HOLDER

poverty line. Instead, it contends here, as it did before the

BIA, that Tadevosyan failed to offer sufficient evidence that

he was not inadmissible as a public charge, because

Abrahamian did not submit enough documentation to support

the income he reported on his taxes.

This argument fails for a number of reasons. First,

Abrahamian swore under penalty of perjury in his affidavit

that his income was $22,211, an amount that indisputably is

sufficient to support Tadevosyan at the required level. As

Tadevosyan points out, the “facts presented in affidavits

supporting a motion to reopen must be accepted as true unless

inherently unbelievable.” Bhasin v. Gonzales, 423 F.3d 977,

987 (9th Cir. 2005) (citing Limsico v. I.N.S., 951 F.2d 210,

213 (9th Cir. 1991)). No finding was made that anything in

Abrahamian’s affidavit was inherently unbelievable. Indeed,

at oral argument, the government could articulate no reason

that Abrahamian would have inflated his income—and

therefore his tax liability—when he filed his tax returns, let

alone any reason apparent in his affidavit or any other

document in the record to disbelieve that the document

submitted was a true copy of Abrahamian’s tax return. Thus,

the sworn statements in Abrahamian’s affidavit about his

income level, corroborated by the Federal tax returns, which

he attested under penalty of perjury were true copies, made a

sufficient prima facie showing to demonstrate that further

proceedings to develop the relevant facts—including

submission of additional corroborating documents, should the

immigration judge so require—would be worthwhile.

Further, to the extent the government contends that

Abrahamian should have submitted “letters, paycheck stubs,

or financial statements” evidencing his income, such

materials may be submitted but are not mandatory. See

TADEVOSYAN V. HOLDER 15

8 C.F.R. § 213a.2(c)(2)(i)(A); see also USCIS, Form I-864

Instructions 5 (rev. March 22, 2013) (specifically instructing,

in bold, “You are not required to submit this evidence,

however, unless specifically instructed to do so by a

Government official”).

That Abrahamian submitted a copy of his tax return rather

than a transcript and did not submit copies of his actual W-2

forms with his affidavit did not defeat the prima facie

showing that Tadevosyan was not a public charge. The

regulations require that a motion to reopen “must be

accompanied by the appropriate application for relief and all

supporting documentation,” 8 C.F.R. § 1003.2(c)(1)), and that

the sponsor’s W-2 forms be submitted to support an

application for adjustment of status, 8 C.F.R.

§ 213a.2(c)(2)(i). But submission of W-2 forms are not a

statutory requirement and may be waived by the adjudicator.

USCIS’s adjudicators specifically are granted discretion

to excuse the failure to file these forms, and need not request

that the missing forms be submitted: USCIS’s Field Manual

for its adjudicators states,

USCIS may also decide that a request for

evidence is not necessary in a case in which

the sponsor filed a photocopy, instead of a

transcript, but forgot to submit Internal

Revenue Service Forms W-2 or 1099. A

decision not to request additional evidence

will be proper if USCIS concludes that the

evidence of record, taken as a whole, makes it

reasonable to infer that the information on the

tax return is true.

16 TADEVOSYAN V. HOLDER

USCIS, Adjudicator’s Field Manual, § 20.5(e),

http://www.uscis.gov/laws/afm; see also USCIS Acting Dir.

for Domestic Operations Michael Aytes, Memorandum re:

Consolidation of Policy Regarding USCIS Form I-864,

Affidavit of Support 12 (June 27, 2006) (repeating the same

instruction and directing that, when deciding whether to

request additional evidence, the adjudicator should consider

that “the sponsor’s statements about his or her employment

and anticipated income are made under penalty of perjury,”

and “[t]hus, these statements on the Form I-864 are

themselves evidence”). We can conceive of no reason why

an immigration judge would not have the same flexibility as

the USCIS adjudicators as to the required documentation. So,

if reopening were granted, and the removal proceedings were

not terminated to allow USCIS to adjudicate the adjustment

application, an immigration judge would have the opportunity

either to accept further evidence and hear testimony, or,

alternatively, to conclude that the information in

Abrahamian’s tax return as already submitted was adequate,

because Abrahamian’s sworn declaration provided a

sufficient basis to excuse the fact that he did not include his

W-2 forms.5

5

We note that, because of the amount of time that has passed since

Abrahamian executed the affidavit of support, to process the application

for adjustment of status now, an immigration judge may require

submission of additional evidence regarding his present income level,

including a copy of his tax return for the most recent year, regardless of

whether the original submission was adequate at the time it was made.

See 8 C.F.R. § 213a.2(a)(1)(v)(B) (providing that an immigration judge

may, based on the facts of a particular case and “in the exercise of

discretion,” require the submission of such additional evidence “[i]f more

than one year passes between the filing of the affidavit of support . . . and

the hearing . . . concerning the intending immigrant’s application for . . .

adjustment of status”). If such additional evidence were required, the

sufficiency of the affidavit of support would be determined based on the

TADEVOSYAN V. HOLDER 17

The latter possibility has much to commend it here, as

Abrahamian in fact did submit some relevant supporting

evidence here. His California Schedule W-2 CG, a copy of

which was attached to the state tax return copy, reproduced

in full the information from his W-2 forms. DHS did not

discuss this document in its opposition before the BIA or its

answering brief here.6

Accordingly, Abrahamian’s affidavit was sufficient to

make the prima facie showing required when the BIA

considers a motion to reopen. Had the BIA addressed the

issue on the merits—which, as we have explained, it did

not—it would have been an abuse of discretion to deny the

motion.

C.

We note, finally, that given the fairly extensive statutory,

regulatory, and case law material we have just analyzed with

regard to the merits of the motion to reopen, if the BIA had

indeed meant to address those merits, it did not fulfill its

obligation to “provide a reasoned explanation for its actions.”

Movsisian, 395 F.3d at 1098. “Due process and this court’s

precedent require a minimum degree of clarity in dispositive

reasoning and in the treatment of a properly raised argument.”

Su Hwa She v. Holder, 629 F.3d 958, 963 (9th Cir. 2010). In

Rodriguez-Lariz v. I.N.S., for example, where “the BIA

merely repeated petitioners’ claims and summarily dismissed

evidence submitted in response to the request for additional evidence, and

not on the original submission. Id.

6

The government stated at oral argument that DHS had not noticed this

document previously.

18 TADEVOSYAN V. HOLDER

them without even purporting to engage in any substantive

analysis or articulating any reasons for its decision,” we

granted the petition and remanded for further proceedings.

282 F.3d 1218, 1227 (9th Cir. 2002). The BIA opinion here,

if read as addressing the merits of the motion to reopen, does

no better. The BIA therefore would have abused its

discretion for a third reason—lack of reasoned

decisionmaking. More tellingly, the failure to provide any

reasoned explanation confirms that the agency denied the

motion because DHS objected, not because it considered

DHS’s objection on the merits and agreed with its reasoning.

III. Conclusion

For the reasons set forth above, Tadevosyan’s petition for

review of the BIA’s March 27, 2008 order denying his

motion to reopen is granted. We remand to the BIA for

further proceedings in light of this decision.

PETITION NO. 08-71791 IS GRANTED AND

REMANDED. PETITION NOS. 07-75087 AND 08-73437

ARE DISMISSED.