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                  IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                            FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                              ________________________   ELEVENTH CIRCUIT
                                                          FEBRUARY 26, 2008
                                                          THOMAS K. KAHN
                                    No. 06-15326
                                                               CLERK
                               ________________________

                                   BIA No. A73-744-888

WOSEN D. GIZAW,

                                                                           Petitioner,

                                            versus

U.S. ATTORNEY GENERAL,

                                                                           Respondent.

                               ________________________

                         Petition for Review of a Decision of the
                              Board of Immigration Appeals
                              _________________________

                                     (February 26, 2008)

Before EDMONDSON, Chief Judge, WILSON, Circuit Judge, and MARTINEZ,*
District Judge.

PER CURIAM:

       *
         Honorable Jose E. Martinez, United States District Judge for the Southern District of
Florida, sitting by designation.
      Wosen D. Gizaw, a native and citizen of Ethiopia, petitions for review the

Board of Immigration Appeals’s (“BIA”) order denying his motion to reopen. He

seeks to reopen the BIA’s prior order dismissing his appeal from an Immigration

Judge’s (“IJ”) denial of his claims for asylum and withholding of removal. In his

motion to reopen, Gizaw argued that new, dangerous conditions have arisen for

members of his tribe in Ethiopia. He argued that his tribe suffers from a “pattern

of abuse” by the current Ethiopian government and that if he were to return to

Ethiopia, his life would be in grave danger. After noting that Gizaw failed to

include an application of asylum with his application, as required by 8 C.F.R. §

1003.2(c)(1), the BIA went on to address the merits of his motion. Because the

BIA failed to consider Gizaw’s “pattern or practice” claim, we vacate its denial of

Gizaw’s motion to reopen and remand this case to the BIA for further

determination.

      “We review the BIA’s denial of a motion to reopen for an abuse of

discretion.” Abdi v. U.S. Attorney Gen., 430 F.3d 1148, 1149 (11th Cir. 2005) (per

curiam). More specifically, we look to whether there has been an exercise of

administrative discretion and whether that exercise was arbitrary or capricious. Id.

      While the BIA could have properly dismissed Gizaw’s motion to reopen for

failing to meet the formal requirements of 8 C.F.R. § 1003.2(c)(1), it did not

clearly exercise its discretion to do so. Instead, the BIA exercised its discretion to
                                           2
examine the merits of Gizaw’s claim. In doing so, however, the BIA failed to

address Gizaw’s “pattern or practice” claim 1 and focused on his failure to show he

would be “singled out” individually for persecution. By denying Gizaw’s motion

without addressing one of his avenues for establishing asylum and withholding of

removal, the BIA’s order was arbitrary and capricious and, therefore, an abuse of

discretion. Accordingly, we VACATE the BIA’s order dismissing Gizaw’s

motion on the merits and REMAND this case to the BIA for further determination.




      1
          See 8 C.F.R. §§ 208.13(b)(2)(iii)(A)–(B), 208.16(b)(2)(i)–(ii).
                                                 3
EDMONDSON, Chief Judge, DISSENTS.




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