Tarlock Singh v. Eric Holder, Jr.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TARLOCK SINGH, AKA Tarlochan No. 09-73798

Singh,

Petitioner, Agency No.

A073-133-622

v.

ERIC H. HOLDER, JR., Attorney

General,

Respondent.

TARLOCK SINGH, AKA Tarlochan No. 10-72626

Singh,

Petitioner, Agency No.

A073-133-622

v.

ERIC H. HOLDER, JR., Attorney OPINION

General,

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

September 12, 2014—San Francisco, California

2 SINGH V. HOLDER

Filed November 13, 2014

Before: Raymond C. Fisher, Marsha S. Berzon

and Morgan Christen, Circuit Judges.

Opinion by Judge Fisher

SUMMARY*

Immigration

Declining to accord deference to the Board of

Immigration Appeals’ published decision in Matter of Yauri,

25 I. & N. Dec. 103 (BIA 2009), the panel granted a petition

for review of the denial of a motion to reopen, and held that

the Board has authority to reopen proceedings of an arriving

alien who is under a final order of removal in order to afford

the alien an opportunity to pursue an adjustment of status

application before United States Citizenship and Immigration

Services.

The panel explained that the Board’s authority to reopen

proceedings in this situation is granted, at minimum, by the

unambiguous language of 8 C.F.R. § 1003.2(a), which states

that “[t]he Board may at any time reopen or reconsider on its

own motion any case in which it has rendered a decision.”

The panel held that the Board’s contrary holding in Matter of

Yauri contravenes the regulation’s plain language and this

*

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

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

SINGH V. HOLDER 3

court’s decision in Kalilu v. Holder, 548 F.3d 1215 (9th Cir.

2008).

The panel held that 8 C.F.R. § 1003.2(f), which governs

the Board’s authority to grant a stay of removal, does not

restrict the Board’s broad power to grant a motion to reopen

in any case or suggest in any way that the Board should

refrain from reopening proceedings for the purpose of

affording an alien the opportunity to pursue relief from

removal before another agency.

Because the Board concluded that it lacked authority to

reopen proceedings, the panel held that the Board legally

erred and abused its discretion. The panel remanded for an

exercise of the Board’s discretion whether to reopen

proceedings.

COUNSEL

Zachary Miller Nightingale, Avantika Shastri (argued) and

Amalia Margarete Wille, Van Der Hout, Brigagliano &

Nightingale, LLP, San Francisco, California; Babak

Pourtavoosi, Jackson Heights, New York, for Petitioner.

Blair T. O’Connor (argued), Assistant Director; Remi Da

Rocha-Afodu, Attorney; Tony West, Assistant Attorney

General, Civil Division; Holly M. Smith, Senior Litigation

Counsel, United States Department of Justice, Office of

Immigration Litigation, Washington, D.C., for Respondent.

4 SINGH V. HOLDER

OPINION

FISHER, Circuit Judge:

For the second time in six years, we hold that the Board

of Immigration Appeals has authority to reopen proceedings

of an alien who is under a final order of removal in order to

afford the alien an opportunity to pursue an adjustment of

status application before United States Citizenship and

Immigration Services. See Kalilu v. Mukasey, 548 F.3d 1215,

1217–18 (9th Cir. 2008). This authority is granted, at

minimum, by the unambiguous language of 8 C.F.R.

§ 1003.2(a), which states that “[t]he Board may at any time

reopen or reconsider on its own motion any case in which it

has rendered a decision.” Because the Board’s contrary

holding in Matter of Yauri, 25 I. & N. Dec. 103 (BIA 2009),

contravenes this regulation’s plain language, we accord it no

deference and decline to follow it.

BACKGROUND

In 2008, an immigration judge (IJ) found the petitioner,

Tarlochan Singh, excludable from the United States, denied

Singh’s requests for asylum, withholding of removal and

relief under the Convention Against Torture and ordered that

he be excluded and deported from the country. Singh

appealed the IJ’s decision to the Board of Immigration

Appeals (BIA or Board), and the Board dismissed Singh’s

appeal, making Singh subject to an administratively final

order of removal. See Ocampo v. Holder, 629 F.3d 923, 928

(9th Cir. 2010); 8 U.S.C. § 1101(a)(47)(B); 8 C.F.R.

§ 1241.1(a).

SINGH V. HOLDER 5

Ninety days later, in February 2010, Singh filed a timely

motion to reopen his exclusion proceedings. See 8 U.S.C.

§ 1229a(c)(7)(C)(i) (providing that a motion to reopen is

timely when filed within 90 days of the date of entry of a

final administrative order of removal); 8 C.F.R.

§ 1003.2(c)(2) (same). In his moving papers, Singh explained

that he had married Patricia Kay Singh, a United States

citizen, in January 2009. In June 2009, Ms. Singh had filed

an immigration visa petition on Singh’s behalf, and in August

2009, United States Citizenship and Immigration Services

(USCIS) had approved the petition. Accordingly, in

November 2009, Singh had filed an application for

adjustment of status with USCIS, seeking to adjust his status

to that of legal permanent resident. Singh argued that the

Board should reopen and continue his exclusion proceedings

to afford him an opportunity to pursue his adjustment of

status application before USCIS without the risk of being

removed. Reopening would have protected Singh from

removal because “the grant of a motion to reopen

automatically vacates” a removal order. Plasencia-Ayala v.

Mukasey, 516 F.3d 738, 745–46 (9th Cir. 2008), overruled on

other grounds by Marmolejo-Campos v. Holder, 558 F.3d

903 (9th Cir. 2009) (en banc). Without reopening, Singh

remains subject to a final order of removal and could be

removed from the United States. If removed, his adjustment

of status application would be deemed abandoned, see

8 C.F.R. § 245.2(a)(4)(ii)(A), and he would be precluded

from reapplying for adjustment of status until he returned to

the United States, which he could not do for 10 years, see

8 U.S.C. § 1182(a)(9)(A)(ii)(II); 8 C.F.R. § 245.1(a). See

Kalilu, 548 F.3d at 1218.

The BIA nonetheless denied Singh’s motion to reopen.

Relying on its precedential decision in Matter of Yauri, 25 I.

6 SINGH V. HOLDER

& N. Dec. 103, decided after Kalilu, the Board ruled that “we

do not have authority to reopen proceedings of aliens who are

under a final order of exclusion to pursue an adjustment

application where we have no jurisdiction over the adjustment

application.” The Board suggested that Singh should request

a stay of removal from the Department of Homeland Security

(DHS), the agency, acting through USCIS, with jurisdiction

over his adjustment application.1 Singh timely petitioned for

review.

JURISDICTION

The denial of a motion to reopen is a final administrative

decision subject to our judicial review. See Oyeniran v.

Holder, 672 F.3d 800, 805 (9th Cir. 2012). Our jurisdiction

arises under 8 U.S.C. § 1252. See Meza-Vallejos v. Holder,

669 F.3d 920, 923 (9th Cir. 2012).

We held in Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir.

2002), that we lack jurisdiction to review a BIA decision not

to reopen proceedings sua sponte under 8 C.F.R. § 3.2(a),

now 8 C.F.R. § 1003.2(a). See also Sharma v. Holder,

633 F.3d 865, 874 (9th Cir. 2011); Minasyan v. Mukasey,

553 F.3d 1224, 1229 (9th Cir. 2009); Toufighi v. Mukasey,

538 F.3d 988, 993 n.8 (9th Cir. 2008); Abassi v. INS,

305 F.3d 1028, 1032 (9th Cir. 2002). That jurisdictional bar,

however, rests on the absence of a judicially manageable

standard for us to evaluate the BIA’s exercise of discretion in

ruling on a motion to reopen. See Ekimian, 303 F.3d at 1159.

Where, as here, the BIA concludes that it lacks the authority

1

DHS possesses the authority to grant a stay of removal under 8 C.F.R.

§§ 241.6(a) and 1241.6(a), although Singh asserts that DHS’s denial of a

stay is not subject to judicial review.

SINGH V. HOLDER 7

to reopen, rather than denying a motion to reopen as an

exercise of discretion, we hold that Ekimian does not preclude

our jurisdiction.2

STANDARD OF REVIEW

We review the denial of a motion to reopen for an abuse

of discretion. See Cano-Merida v. INS, 311 F.3d 960, 964

(9th Cir. 2002). “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.”

Tadevosyan v. Holder, 743 F.3d 1250, 1252-53 (9th Cir.

2014) (internal quotation marks omitted).

“An agency’s interpretation of its own regulation is

‘controlling’ if it is not ‘plainly erroneous or inconsistent’

with the regulation.” L.A. Closeout, Inc. v. Dep’t of

Homeland Sec., 513 F.3d 940, 942 (9th Cir. 2008) (quoting

Auer v. Robbins, 519 U.S. 452, 461 (1997)). Thus, “we defer

to the agency’s interpretation . . . unless an alternative reading

is compelled by the regulation’s plain language or by other

indications of the [agency’s] intent at the time of the

regulation’s promulgation.” Id. (alteration in original)

(quoting Bassiri v. Xerox Corp., 463 F.3d 927, 931 (9th Cir.

2006)) (internal quotation marks omitted).

2

It is not clear whether the BIA denied Singh’s motion to reopen under

§ 1003.2(a), under § 1003.2(c) or under both of these provisions.

Regardless, we have jurisdiction to review the BIA’s decision even if it

acted solely under § 1003.2(a); the government does not argue to the

contrary.

8 SINGH V. HOLDER

DISCUSSION

In his petition for review, Singh contends the BIA abused

its discretion when it concluded that it lacked authority to

reopen his exclusion proceedings. We agree. Because the

BIA denied Singh’s motion to reopen in reliance on its

precedential decision in Matter of Yauri, we begin by

summarizing that decision.

In 2003, the BIA entered a final administrative order in

Yauri’s removal proceedings, dismissing Yauri’s appeal from

the immigration judge’s decision. See Matter of Yauri, 25 I.

& N. Dec. at 103. Four years later, Yauri filed an untimely

motion to reopen, arguing that the Board should reopen her

removal proceedings and then continue them indefinitely so

she could pursue an application for adjustment of status

before USCIS without being subject to a final order of

removal. See id. at 103–04. Because her motion was

untimely, Yauri urged the Board to use its authority to reopen

her removal proceedings sua sponte under 8 C.F.R.

§ 1003.2(a). See id. at 104. That regulation states that “[t]he

Board may at any time reopen or reconsider on its own

motion any case in which it has rendered a decision.”

8 C.F.R. § 1003.2(a). Motions to reopen under § 1003.2(c),

by contrast, generally must be filed within 90 days. See id.

§ 1003.2(c)(2).

The Board denied Yauri’s motion to reopen. It began by

noting that, because Yauri was an arriving alien rather than an

admitted one, only USCIS, not an immigration judge or the

BIA, had jurisdiction over Yauri’s application for adjustment

of status. See Matter of Yauri, 25 I. & N. Dec. at 107 (citing

8 C.F.R. § 245.2(a)(1)). Next, the Board reasoned that,

although Yauri had filed a motion to reopen and continue her

SINGH V. HOLDER 9

removal proceedings pending USCIS’ consideration of her

adjustment application, Yauri effectively was seeking “a stay

of removal pending adjudication of an application by the

USCIS.” Id. at 108–09 & n.4 (emphasis added). Thus, rather

than asking whether it had authority to reopen and continue

Yauri’s proceedings, the Board asked whether it had statutory

or regulatory authority to issue a “stay” of removal. See id.

at 108–10.

The Board held that it lacked such authority. It reasoned

that the sole source of its authority to enter a stay of removal

was found in 8 C.F.R. § 1003.2(f) and concluded that

§ 1003.2(f) did not authorize a stay of removal for purposes

of pursuing an application for adjustment of status before

another agency. See id. at 109.3 The Board said:

We do not view the Board’s authority to

consider stays of execution of final orders,

which we have been granted under Federal

regulations, to extend this far. In particular,

we have been granted limited stay authority

under the regulations, which is almost

3

Section 1003.2(f) states:

Stay of deportation. Except where a motion is filed

pursuant to the provisions of §§ 1003.23(b)(4)(ii) and

1003.23(b)(4)(iii)(A), the filing of a motion to reopen

or a motion to reconsider shall not stay the execution of

any decision made in the case. Execution of such

decision shall proceed unless a stay of execution is

specifically granted by the Board, the Immigration

Judge, or an authorized officer of the Service.

8 C.F.R. § 1003.2(f).

10 SINGH V. HOLDER

exclusively tied to pending motions before the

Board. 8 C.F.R. § 1003.2(f). Under that

authority, if there is no automatic stay under

the regulations, we may determine whether to

grant a stay of execution of the final

deportation or removal order while we

consider the motion that is pending before us.

Id. Likewise, an Immigration Judge also

has authority to stay execution of a final

order while a motion is pending before

the Immigration Court. 8 C.F.R.

§ 1003.23(b)(1)(v) (2009). The stay authority

granted to the Board and Immigration Judges

does not provide general authority to grant

stays of administratively final orders in

conjunction with matters over which we have

no authority. Rather, the limited stay

authority provides the opportunity to stay

proceedings while a pending motion is

adjudicated. That stay authority also

terminates upon adjudication of the pending

motion.

Id. On the strength of this reasoning, the Board concluded

that it had “not been granted authority to reopen the

proceedings of respondents who are under a final

administrative order of removal to pursue matters that could

affect their removability if we have no jurisdiction over such

matters.” Id. at 110.

We decline to follow Yauri. As noted, we are bound to

follow an agency’s reasonable interpretations of its own

regulations, but we do not defer to an agency’s interpretation

when it is contrary to the plain language of the regulation.

SINGH V. HOLDER 11

See Lal v. INS, 255 F.3d 998, 1004, amended by 268 F.3d

1148 (9th Cir. 2001). That is the case here. Section

1003.2(a) plainly and unambiguously states that “[t]he Board

may at any time reopen or reconsider on its own motion any

case in which it has rendered a decision.” 8 C.F.R.

§ 1003.2(a) (emphasis added). The Board therefore had

authority to reopen Singh’s proceedings under § 1003.2(a).

Section 1003.2(f), upon which the BIA relied in Yauri, is

not to the contrary. By its plain language, that provision

simply gives the Board authority to grant a stay of removal

while a motion to reopen is pending – after the motion has

been filed but before it has been acted on by the BIA. The

provision does not restrict the BIA’s broad power to grant a

motion to reopen in any case or suggest in any way that the

BIA should refrain from reopening proceedings for the

purpose of affording an alien the opportunity to pursue relief

from removal before another agency. On the contrary,

subsections 1003.2(a) and (f) are fully consistent with BIA’s

broad authority to grant motions to reopen in any case.

The Board’s conclusion that it lacks the authority to

reopen Singh’s case is also contrary to our decision in Kalilu.

There, as here, the Board denied the petitioner’s timely

motion to reopen, concluding that it lacked jurisdiction to

reopen because USCIS, rather than the immigration court,

had jurisdiction over the petitioner’s adjustment of status

application. See Kalilu, 548 F.3d at 1217–18. We rejected

the BIA’s conclusion that it lacked jurisdiction to reopen the

petitioner’s case, holding that “the BIA’s denial of

Petitioner’s motion to reopen solely on jurisdictional grounds

constitutes an abuse of discretion,” id., and remanding for the

Board to exercise its discretion, see id. at 1218. In Yauri, the

Board declined to follow Kalilu, concluding that the decision

12 SINGH V. HOLDER

did not speak directly to the Board’s authority to reopen for

the purpose of effecting a stay. See Matter of Yauri, 25 I. &

N. Dec. 108 n.3. We disagree.

Kalilu specifically held that the Board had jurisdiction to

grant a motion to reopen “in order to provide time for USCIS

to adjudicate a pending application” for adjustment of status.

Kalilu, 548 F.3d at 1218. Yauri’s rationale for disregarding

Kalilu therefore constitutes legal error. Given that the BIA

ordinarily “follows the law of the circuit in which an

individual case arises,” Jama v. Immigration & Customs

Enforcement, 543 U.S. 335, 350 n.10 (2005); see also Matter

of K-S-, 20 I. & N. Dec. 715, 718 (BIA 1993); Matter of

Anselmo, 20 I. & N. Dec. 25, 31–32 (BIA 1989), the BIA has

failed to adequately explain its decision not to follow Kalilu

in Singh’s case. See Movsisian v. Ashcroft, 395 F.3d 1095,

1098 (9th Cir. 2005) (“We have long held that the BIA abuses

its discretion when it fails to provide a reasoned explanation

for its actions.”).

In holding that the BIA had authority to reopen Singh’s

case under § 1003.2(a), we do not suggest this was

necessarily the sole source of the BIA’s authority to reopen.

Because Singh’s motion was timely, the Board may have had

authority to reopen under § 1003.2(c) as well. That provision

recognizes that, at least under some circumstances, a motion

to reopen may be filed “for the purpose of affording the alien

an opportunity to apply for any form of discretionary relief.”

8 C.F.R. § 1003.2(c)(1). Adjustment of status is a form of

discretionary relief. See Hernandez v. Ashcroft, 345 F.3d

824, 845 (9th Cir. 2003); Eligibility of Arriving Aliens in

Removal Proceedings To Apply for Adjustment of Status,

71 Fed. Reg. 27,585, 27,588 (May 12, 2006). Indeed, the

BIA has long recognized its authority to reopen a case to

SINGH V. HOLDER 13

permit an alien to pursue an adjustment of status application,

even when a portion of the application – the visa petition – is

to be adjudicated by USCIS rather than by an immigration

judge. See Matter of Hashmi, 24 I. & N. Dec. 785, 788 (BIA

2009); Matter of Garcia, 16 I. & N. Dec. 653, 657 (BIA

1978), modified on other grounds by Matter of Arthur, 20 I.

& N. Dec. 475 (BIA 1992), abrogated as recognized in

Tadevosyan v. Holder, 743 F.3d 1250, 1253 (9th Cir. 2014).

Here, however, we need not address the Board’s authority to

reopen under § 1003.2(c). Because the Board had authority

to reopen under § 1003.2(a), the Board’s denial of Singh’s

motion to reopen on jurisdictional grounds was legal error,

and is alone sufficient reason to grant Singh’s petition for

review.

The government argues the BIA’s error in ruling that it

lacked authority to reopen Singh’s case was harmless because

the BIA could have denied Singh’s motion as an exercise of

discretion. We may uphold a decision of the BIA, however,

solely on the grounds given by the agency. See Andia v.

Ashcroft, 359 F.3d 1181, 1184 (9th Cir. 2004) (“In reviewing

the decision of the BIA, we consider only the grounds relied

upon by that agency. If we conclude that the BIA’s decision

cannot be sustained upon its reasoning, we must remand to

allow the agency to decide any issues remaining in the

case.”). Because the BIA denied Singh’s motion only for

lack of authority, we grant the petition and remand to the

BIA.

In sum, we hold the BIA erred when it denied Singh’s

motion to reopen for lack of authority. Because the BIA’s

decision was contrary to law, it abused its discretion. We

grant the petition for review in No. 10-72626 and remand to

the BIA for an exercise of the agency’s discretion. See

14 SINGH V. HOLDER

Kalilu, 548 F.3d at 1218. We express no opinion on how that

discretion should be exercised.4 We deny the petition for

review in No. 09-73798 for the reasons stated in a

concurrently filed memorandum disposition.

In No. 09-73798, PETITION DENIED.

In No. 10-72626, PETITION GRANTED;

REMANDED.

4

In Matter of Yauri, as well as in this case, the Board suggested that its

discretion should not be favorably exercised in cases such as Singh’s

because the better practice would be for an alien in Singh’s position to

seek a stay from DHS rather than seeking reopening from the BIA. See

25 I. & N. Dec. at 109–10. At oral argument, however, Singh’s counsel

noted that a denial of a stay by DHS would not be subject to judicial

review, whereas a denial of a motion to reopen by the BIA would be

reviewable, at least if issued under § 1003.2(c). Given the significance of

the rights at stake, this may be an important consideration in the Board’s

exercise of discretion. See Kalilu, 548 F.3d at 1218 (noting that “[t]he

opportunity that [federal law] affords for an arriving alien in removal

proceedings to establish his eligibility for adjustment based on a bona fide

marriage is rendered worthless where [removal is not stayed] in order to

provide time for USCIS to adjudicate a pending application”). Although

motions to reopen are disfavored, see INS v. Doherty, 502 U.S. 314, 323

(1992); INS v. Abudu, 485 U.S. 94, 107 (1988), they also constitute an

“important safeguard” of an alien’s rights, Dada v. Mukasey, 554 U.S. 1,

18 (2008).