                              NOT FOR PUBLICATION                          FILED
                      UNITED STATES COURT OF APPEALS                       AUG 16 2016
                                                                       MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT



 LETICIA OSEGUEDA DE ALFARO,                       No.    14-72679

                    Petitioner,                    Agency No. A087-331-571

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

                    Respondent.

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

                           Argued and Submitted July 7, 2016
                                 Pasadena, California

Before: FERNANDEZ, CLIFTON, and FRIEDLAND, Circuit Judges.

         Petitioner Leticia Osegueda de Alfaro petitions for review of the dismissal

by the Board of Immigration Appeals (“BIA”) of her appeal from an Immigration

Judge’s denial of her motion to reopen. We review for an abuse of discretion, De

Martinez v. Ashcroft, 374 F.3d 759, 761 (9th Cir. 2004), and grant the petition for

review.


         *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      In her motion, Petitioner sought reopening of her removal proceedings to

pursue a new provisional unlawful presence waiver, a so-called I-601A waiver,

under a rule that took effect after she had agreed to voluntary departure. See 8

C.F.R. § 212.7. The BIA indicated that the law precluded reopening, which

appears to be contrary to a regulation providing that the BIA always has discretion

to reopen proceedings. 8 C.F.R. § 1003.2(a). Indeed, the Government’s position

at oral argument was that the BIA had discretion and that the BIA had exercised

that discretion by denying reopening. In light of the Government’s concession

that reopening is a matter of discretion, the BIA’s apparent failure to recognize its

discretionary authority and then to consider whether to grant or deny reopening as

a matter of discretion warrants remand. See Cerezo v. Mukasey, 512 F.3d 1163,

1166 (9th Cir. 2008) (holding that it is an abuse of discretion to make an error of

law); see also Singh v. Holder, 771 F.3d 647, 653 (9th Cir. 2014) (“Because the

Board had authority to reopen under § 1003.2(a), the Board’s denial of [the

petitioner’s] motion to reopen on jurisdictional grounds was legal error, and is

alone sufficient reason to grant [the petitioner’s] petition for review.”).

      We therefore grant the petition for review and remand for further

proceedings.

                                           2
GRANTED and REMANDED.




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