                                                                           FILED
                             NOT FOR PUBLICATION                            FEB 22 2010

                                                                        MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS




                              FOR THE NINTH CIRCUIT



 NGHI XUAN TRAN,                                  No. 07-73741

               Petitioner,                        Agency No. A042-184-405

   v.
                                                  MEMORANDUM *
 ERIC H. HOLDER Jr., Attorney General,

               Respondent.



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

                             Submitted February 16, 2010 **

Before:        FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.

        Nghi Xuan Tran, a native and citizen of Vietnam, petitions for review of the

Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an

immigration judge’s decision denying his special motion to seek § 212(c) relief.



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

LA/Research
We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the

denial of a motion to reopen, Avila-Sanchez v. Mukasey, 509 F.3d 1037, 1039 (9th

Cir. 2007), and we grant the petition for review and remand.

       We remand to the BIA to explain its reasons for denying Tran’s special

motion to seek § 212(c) relief filed pursuant to 8 C.F.R. § 1003.44(d). See

Mohammed v. Gonzales, 400 F.3d 785, 792 (9th Cir. 2005). The BIA appears to

have denied Tran’s motion because he chose not to file an application for a

§ 212(c) waiver at his hearing in 2003, but does not explain on what grounds this

bars the subsequent filing of a special motion to seek such relief. See 8 C.F.R.

§ 1003.44(d) (“A motion under this section will not be granted with respect to any

conviction where an alien has previously been denied section 212(c) relief by a

immigration judge or by the Board on discretionary grounds.”) (emphasis added).

       PETITION FOR REVIEW GRANTED; REMANDED.




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