09-1277-ag
Yang v. Holder

                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER

RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
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BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1.
W HEN CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY
M UST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE
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OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.



        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 4th day of February, two thousand and nine.

Present:         JOSÉ A. CABRANES,
                 ROSEMARY S. POOLER,
                 GERARD E. LYNCH,
                            Circuit Judges.

_____________________________________________________

YOU DING YANG,

                                                                    Petitioner,

                         -v-                                        09-1277-ag

ERIC H. HOLDER, JR., ATTORNEY GENERAL,



                                                                    Respondent.


Appearing for Petitioner:      Gary J. Yerman, New York, NY.

Appearing for Respondent:      Tony West, Assistant Attorney General, Civil Division; John C
                               Cunningham, Senior Litigation Counsel Office of Immigration
                               Litigation; Remi Adalemo, Civil Division, U.S. Department of
                               Justice, Washington, DC.

        Petition for review of an order of the Board of Immigration Appeals (“BIA”).
     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the petition for review is GRANTED, the decision of the BIA is
VACATED, and the matter is REMANDED to the BIA.

        You Ding Yang (“petitioner”) seeks review of a March 13, 2009 order and decision of the
BIA, denying his motion to reopen his deportation proceedings.1 Petitioner argues that the BIA
erred in refusing to exercise its sua sponte authority to reopen the case pursuant to 8 C.F.R. §
1003.2(a), and that Yang is prima facie eligible for adjustment of status under 245(i) of the
Immigration and Nationality Act, 8.U.S.C. § 1255(i). We assume the parties’ familiarity with the
underlying facts, procedural history, and the specification of issues for review.

      We review the BIA’s denial of a motion to reopen under an abuse of discretion standard.
See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005).

        The BIA based its decision to deny Yang’s motion to reopen on three, and possibly four,
grounds: 1) petitioner’s failure to withdraw his application for voluntary departure before the
departure period; 2) his ineligibility for adjustment of status; and 3) that Yang’s motion was
untimely because it was not filed within 90 days of the entry of the order of the immigration
judge. 8 C.F.R. § 1003.2(c)(2). The BIA also noted that Yang’s wife had previously submitted a
Petition for Alien Relative (“I-130 petition”) on his behalf, and that it had been denied. The BIA
did not specify whether or not the denial of the I-130 petition was relevant to the question of
Yang’s eligibility, or whether it established independent support for denying the motion. We
therefore proceed by considering each these possibilities in the alternative.

        The government concedes that the BIA erred in finding that the voluntary departure
period, during which Yang would not have been eligible to file a motion to reopen, had not
elapsed by the time Yang filed the motion at issue here.

        We therefore proceed to consider the remaining grounds of the BIA’s decision. To the
extent that the BIA rested its decision on the fact that Yang’s I-130 petition had been denied
either in determining his eligibility for status, or as an independent ground, we find that the
decision was based on an incorrect understanding of the law.

       While it is true that approval of an I-130 petition is a prerequisite to an application for
adjustment of status, the BIA has determined that a previous denial of an application will not
prejudice future applications, and relatedly, that each application will receive de novo
consideration. In re Sonia May Jenkins, 2009 WL 1863796 (BIA June 19, 2009) (citing In re
Tawfik, 20 I & N Dec. 166, 168 (BIA 1990); In re F-, 9 I & N Dec. 684 (BIA 1962)). This
standard also applies in situations where the prior denial was based, as it was here, on a failure to
appear for an interview with the immigration judge. In re Tian Ming Li, 2009 WL 888482 (BIA


       1
          Yang’s petition for review only concerns the March 13, 2009 order of the BIA and, as a
result, this appeal does not involve any issues arising from the BIA’s earlier February 24, 2003
judgment on one of Yang’s earlier motions to reopen. See Stone v. INS, 514 U.S. 386, 401-02
(1995).

                                                  2
Mar. 13, 2009).

        Yang’s eligibility for adjustment of status is therefore not ipso facto precluded because
his I-130 petition was denied. If we are correct that the denial of Yang’s I-130 petition was
relevant to the BIA’s determination of his eligibility for adjustment of status, then the only
remaining defect in Yang’s application to reopen would be its untimeliness. Under these
circumstances, we are not convinced that the BIA would have declined to exercise its sua sponte
authority, because it would not have been clear that granting Yang’s motion to reopen would be
futile. We also cannot conclude that the result would be the same if the I-130 petition had
constituted an independent reason for denying Yang’s motion. In either case, the analysis would
have been substantially changed if the BIA had examined Yang’s claims under the correct law.

        While it is generally within the discretion of the BIA to determine whether or not to
exercise its sua sponte authority, see 8 C.F.R. 1003.2(a); Ali v. Gonzales, 448 F.3d 515, 518 (2d
Cir. 2006), this is not so where the BIA renders its decision on the basis of a misunderstanding of
the relevant law. In Mahmood v. Holder, 570 F.3d 466 (2d Cir. 2009), we held that “where the
[a]gency may have declined to exercise its sua sponte authority because it misperceived the legal
background and thought, incorrectly, that a reopening would necessarily fail, remand to the
[a]gency for reconsideration in view of the correct law is appropriate.” Id. at 469.

         We find the record in this case to be analogous to Mahmood in that the BIA based its
decision upon on a misunderstanding of the legal background that, in our view, was sufficient for
it to find remand to be futile. Id. at 471. Consequently, we find that remand to the BIA is
appropriate so that it can to reconsider Yang’s petition in light of the relevant law. Because we
remand to the BIA to reconsider Yang’s motion to reopen, we do not reach his argument that he
is prima facie eligible for adjustment of status.

    We therefore GRANT the petition for review, VACATE the BIA’s order, and
REMAND the matter to the BIA for reconsideration.

                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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