Narrative Opinion Summary
In a petition for review, a Vietnamese national contested a Board of Immigration Appeals (BIA) order that dismissed his appeal of an immigration judge’s removal order and denied his motion to remand. Jurisdiction for the review was based on 8 U.S.C. § 1252. The BIA had denied the motion to remand, asserting that jurisdiction over adjustment of status applications was exclusive to the Department of Homeland Security. However, the court identified this as an abuse of discretion based on the precedent set in Kalilu v. Mukasey, which holds that such denials for arriving aliens on jurisdictional grounds are improper. Consequently, the case was remanded to the BIA for reconsideration in light of this precedent and the factors in Matter of Velarde-Pacheco. The court did not address an equal protection claim, deeming the remand sufficient for reconsideration, and noted that other issues were waived by the petitioner as they were not raised in his opening brief. This case disposition is not intended for publication and does not establish precedent except as permitted by the Ninth Circuit rules.
Legal Issues Addressed
Abuse of Discretion in Denying Motions Based on Jurisdictionsubscribe to see similar legal issues
Application: The court found that denying a motion to reopen for adjustment of status on jurisdictional grounds is an abuse of discretion for arriving aliens, as established in Kalilu v. Mukasey.
Reasoning: Denying a motion to reopen for adjustment of status on jurisdictional grounds constitutes an abuse of discretion for an arriving alien.
Equal Protection Claim and Procedural Actionssubscribe to see similar legal issues
Application: Nguyen's equal protection claim was not addressed because the remand sufficed for reconsideration of the primary issues.
Reasoning: The court did not address Nguyen’s equal protection claim since the remand was sufficient for reconsideration.
Jurisdiction for Review under 8 U.S.C. § 1252subscribe to see similar legal issues
Application: The jurisdiction for reviewing the BIA's order is established under the statutory provision 8 U.S.C. § 1252.
Reasoning: The jurisdiction for review is established under 8 U.S.C. § 1252.
Motion to Remand and Adjustment of Statussubscribe to see similar legal issues
Application: The BIA's denial of Nguyen's motion to remand was challenged due to a misapplication of jurisdiction over adjustment of status applications.
Reasoning: The BIA's denial of Nguyen’s motion to remand was based on the premise that jurisdiction over his adjustment of status application rested solely with the Department of Homeland Security.
Non-Precedential Dispositionsubscribe to see similar legal issues
Application: The case disposition is not intended for publication and does not set a precedent, except as allowed by court rules.
Reasoning: The final disposition of the case is not intended for publication and does not set a precedent except as allowed by 9th Cir. R. 36-3.
Remand for Reconsideration in Light of New Precedentsubscribe to see similar legal issues
Application: The case was remanded to the BIA for reconsideration of Nguyen's motion to remand in light of new precedent and relevant factors.
Reasoning: Consequently, the court remanded the case for the BIA to reconsider Nguyen’s motion in light of this new legal precedent and the factors outlined in Matter of Velarde-Pacheco.
Waiver of Issues Not Raised in Opening Briefsubscribe to see similar legal issues
Application: Nguyen waived challenges regarding other forms of relief and ineligibility for cancellation of removal by not raising them in his opening brief.
Reasoning: Nguyen waived any issues regarding the agency’s denial of other forms of relief and his ineligibility for cancellation of removal, as he did not raise these challenges in his opening brief.