                                                                            FILED
                             NOT FOR PUBLICATION                             JAN 17 2013

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




                             FOR THE NINTH CIRCUIT



JUAN NICOLAU IMPERIO,                            No. 12-70751

               Petitioner,                       Agency No. A087-451-183

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

               Respondent.



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

                             Submitted January 15, 2013 **

Before:        SILVERMAN, BEA, and NGUYEN, Circuit Judges.

       Juan Nicolau Imperio, a native and citizen of the Philippines, petitions pro se

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

motion to reopen. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for

abuse of discretion the denial of a motion to reopen. Mohammed v. Gonzales, 400


          *
             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).
F.3d 785, 791-92 (9th Cir. 2005). We deny in part and grant in part the petition for

review, and remand.

      The BIA did not abuse its discretion in denying Imperio’s motion to reopen

for failure to establish ineffective assistance of counsel because he was pro se at

the time he waived his asylum claim before the immigration judge. See id. at 793

(petitioner must demonstrate that counsel failed to perform with sufficient

competence).

      The BIA also did not abuse its discretion in denying Imperio’s motion to

reopen for failure to establish prima facie eligibility for adjustment of status. See 8

U.S.C. § 1255(a)(3) (“an immigrant visa [must be] immediately available to the

alien at the time the application [for adjustment of status] is filed”).

      The BIA failed to address Imperio’s contention that he met the statutory

requirements for cancellation of removal. Because “this court cannot affirm the

BIA on a ground upon which it did not rely,” Navas v. INS, 217 F.3d 646, 658 n.

16 (9th Cir. 2000), we remand the case to the BIA to address Imperio’s eligibility

in the first instance. See INS v. Ventura, 537 U.S. 12, 16 (2002) (per curiam).

      The parties shall each bear their own costs for their petition for review.

      PETITION FOR REVIEW DENIED in part; GRANTED in part;

REMANDED.


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