Singh v. Holder

8 C.F.R. § 1003.2(a) unambiguously allows the Board of Immigration Appeals to reopen or reconsider any case that it has rendered a decision on at anytime and on its own motion; and, 8 C.F.R. § 1003.2(f) is consistent with the authority granted in 8 C.F.R. § 1003.2(a).

In 2008, Tarlochan Singh was found excludable by an immigration judge. He appealed the decision to the Board of Immigration Appeals (“BIA”), but the BIA dismissed said appeal. In February 2010, Singh filed a motion to reopen his exclusion proceeding so he could pursue his adjustment status before the United States Citizenship and Immigration Services without the threat of being removed. The BIA denied the reopening relying on the decision in Matter of Yauri, and held that it did not have jurisdiction over the adjustment application. Singh appealed, arguing that the BIA abused its discretion when it concluded that it lacked authority to reopen his proceeding. The Ninth Circuit began by distinguishing this case from Ekimian v. INS, which held that the panel lacked jurisdiction to review a BIA decision on the ability to reopen a proceeding. This case is distinguishable from Ekimian because the BIA in this case ruled that it lacked authority to reopen, whereas the BIA in Ekimian denied reopening based on an exercise of discretion. “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.” The panel declined to follow the decision in Yauri, as the BIA did, because the decision in Yauri is contrary to the plain language of 8 C.F.R. § 1003.2(a). Yauri is also contrary to the findings in Kalilu v. Holder. Accordingly, the panel found that the BIA abused its discretion when it claimed that it lacked authority to rule on the reopening of Singh’s proceedings. In No. 09-73798, PETITION DENIED. In No. 10-72626, PETITION GRANTED; REMANDED.