Santos Benitez v. Loretta E. Lynch

MEMORANDUM

Petitioner Santos Noel Benitez, a native and citizen of El Salvador, petitions for review of an order of the Board of Immigration Appeals (BIA) dismissing his appeal from an immigration judge’s decision denying his motion to reopen removal proceedings. We review for 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 for further proceedings.

Petitioner moved to reopen so that he could pursue an I-601A provisional waiver of inadmissibility pursuant to 8 C.F.R. § 212.7 . With respect to an individual like Benitez who has been in removal proceedings, such a waiver is available only if the agency has administratively closed proceedings, instead of entering a removal order. 8 C.F.R. §§ 212.7 (e)(3)(h), (4)(v); see also Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives, 78 Fed. Reg. 536 , 545 (Jan. 3, 2013).

The BIA correctly noted that Petitioner was ordered removed, rendering him presently ineligible for the waiver. The BIA abused its discretion in denying Benitez’s motion to reopen, however, because it appears not to have considered…