                                                                            FILED
                             NOT FOR PUBLICATION                            NOV 22 2016

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


GUSTAVO BERMUDEZ-BARAJAS,                        No.   14-71921

              Petitioner,                        Agency No. A099-628-622

 v.
                                                 MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

              Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                            Submitted November 16, 2016**

Before:      LEAVY, BERZON, and MURGUIA, Circuit Judges.

      Gustavo Bermudez-Barajas, a native and citizen of Mexico, petitions pro se

for review of the Board of Immigration Appeals (“BIA”) order denying his motion

to reopen removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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.

      Bermudez-Barajas moved to reopen so that he could pursue an I-601A

provisional waiver of inadmissibility pursuant to 8 C.F.R. § 212.7(e). At that time,

an individual who had been in removal proceedings was eligible for the waiver

only if the agency had administratively closed proceedings, instead of entering a

removal order. See 8 C.F.R. § 212.7(e)(4) (2013).

      The BIA correctly noted that Bermudez-Barajas’ final order of removal

rendered him ineligible for the waiver. However, the BIA abused its discretion in

denying Bermudez-Barajas’ motion to reopen because it appears not to have

considered whether he was entitled to reopening as a matter of discretion. See 8

C.F.R. § 1003.2(a); Singh, 771 F.3d at 653 (the BIA’s denial of a motion to reopen

on jurisdictional grounds was legal error, and thus an abuse of discretion, because

it had authority to reopen under 8 C.F.R. § 1003.2(a)). We therefore grant the

petition and remand for further proceedings.

      In light of this disposition, we do not reach Bermudez-Barajas’ remaining

contentions.

      PETITION FOR REVIEW GRANTED; REMANDED.




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