                                                                            FILED
                             NOT FOR PUBLICATION                            NOV 22 2016

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


EBER BALAN-BARRERA,                              No.   14-73108

              Petitioner,                        Agency No. A201-289-877

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

              Respondent.


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

                            Submitted November 16, 2016**

Before:      LEAVY, BERZON, and MURGUIA, Circuit Judges.

      Eber Balan-Barrera, a native and citizen of Guatemala, petitions for review

of the Board of Immigration Appeals (“BIA”) order denying his motion to reopen

removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review for




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
abuse of discretion the denial of a motion to reopen. Singh v. Holder, 771 F.3d

647, 650 (9th Cir. 2014). We grant the petition for review and remand.

      Balan-Barrera moved to reopen so that he could pursue an I-601A

provisional waiver of inadmissibility pursuant to 8 C.F.R. § 212.7(e). At that time,

an individual who had been in removal proceedings was eligible for the waiver

only if the agency had administratively closed proceedings, instead of entering a

removal order. See 8 C.F.R. § 212.7(e)(4) (2013).

      The BIA correctly noted that Balan-Barrera’s final order of removal

rendered him ineligible for the waiver. However, the BIA abused its discretion in

denying Balan-Barrera’s motion to reopen because it appears not to have

considered whether he was entitled to reopening as a matter of discretion. See 8

C.F.R. § 1003.2(a); Singh, 771 F.3d at 653 (the BIA’s denial of a motion to reopen

on jurisdictional grounds was legal error, and thus an abuse of discretion, because

it had authority to reopen under 8 C.F.R. § 1003.2(a)). We therefore grant the

petition and remand for further proceedings.

      PETITION FOR REVIEW GRANTED; REMANDED.




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