Santokh Parihar v. Eric H. Holder Jr.

MEMORANDUM

Santokh Parihar petitions for review of the Board of Immigration Appeals’s (“BIA”) decision to deny his motion to reopen. Because the BIA failed to address all of Parihar’s arguments, we remand.

1.The BIA denied Parihar’s motion to reopen as untimely. Parihar had argued to the BIA that the motion was late due to ineffective assistance of counsel (“IAC”). His counsel had filed the motion with the immigration judge, not with the BIA, and, in any case, the misfiling was after the filing deadline. The BIA considered his motion to reopen as having been filed with the BIA, but denied the motion as untimely. The BIA’s concession did not moot Parihar’s claim that the motion was late because of IAC. See Iturribarria v. INS, 321 F.3d 889, 898 (9th Cir.2003). Nor did the BIA address this IAC claim. Because we may not decide this claim in the first instance, we remand for the BIA to do so. See Montes-Lopez v. Gonzales, 486 F.3d 1163, 1165 (9th Cir.2007).

2. Parihar also claims the BIA should reopen his case because he’s entitled to adjustment of status by virtue of having been approved for an alien relative visa. The BIA hasn’t addressed this claim yet. We may not take up the…