Nguyen v. Holder
Docket: No. 06-74796
Court: Court of Appeals for the Ninth Circuit; March 1, 2009; Federal Appellate Court
Hoang Nguyen, a Vietnamese citizen, petitions for review of the Board of Immigration Appeals (BIA) decision that dismissed his appeal from an immigration judge's removal order and denied his motion to remand. Jurisdiction is established under 8 U.S.C. § 1252. The petition is granted in part and denied in part, with a remand for further proceedings. The BIA denied Nguyen's motion to remand for adjustment of status, asserting that jurisdiction lies solely with the Department of Homeland Security. However, the BIA's decision was made without the benefit of the Kalilu v. Mukasey precedent, which indicates that the BIA abuses its discretion in denying a motion to reopen for adjustment of status based solely on jurisdictional grounds. Consequently, the BIA is instructed to reconsider Nguyen's motion in light of this intervening case law and the factors outlined in Matter of Velarde-Pacheco. Nguyen's equal protection claim is not addressed due to the remand. Additionally, he waived any challenge to the agency's denial of his motion for other forms of relief and the determination of his ineligibility for cancellation of removal, as issues not specifically raised in the opening brief are considered waived per Martinez-Serrano v. INS. The petition for review is granted in part, denied in part, and remanded, with the disposition not intended for publication and not establishing precedent except as outlined by 9th Cir. R. 36-3.