                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 01 2013

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




                            FOR THE NINTH CIRCUIT



SANTOKH SINGH PARIHAR,                           No. 08-70894

              Petitioner,                        Agency No. A077-596-351

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

              Respondent.



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

                     Argued and Submitted November 6, 2012
                              Pasadena, California

Before:       KOZINSKI, Chief Judge, REINHARDT and THOMAS, Circuit
              Judges.


       Santokh Parihar petitions for review of the Board of Immigration Appeals’s

(“BIA”) decision to deny his motion to reopen. Because the BIA failed to address

all of Parihar’s arguments, we remand.



          *
             This disposition isn’t appropriate for publication and isn’t precedent
except as provided by 9th Cir. R. 36-3.
                                                                               page 2

      1. The BIA denied Parihar’s motion to reopen as untimely. Parihar had

argued to the BIA that the motion was late due to ineffective assistance of counsel

(“IAC”). His counsel had filed the motion with the immigration judge, not with

the BIA, and, in any case, the misfiling was after the filing deadline. The BIA

considered his motion to reopen as having been filed with the BIA, but denied the

motion as untimely. The BIA’s concession did not moot Parihar’s claim that the

motion was late because of IAC. See Iturribarria v. INS, 321 F.3d 889, 898 (9th

Cir. 2003). Nor did the BIA address this IAC claim. Because we may not decide

this claim in the first instance, we remand for the BIA to do so. See Montes-Lopez

v. Gonzales, 486 F.3d 1163, 1165 (9th Cir. 2007).


      2. Parihar also claims the BIA should reopen his case because he’s entitled

to adjustment of status by virtue of having been approved for an alien relative visa.

The BIA hasn’t addressed this claim yet. We may not take up the issue in the first

instance. Id. The BIA should address Parihar’s eligibility for adjustment of status

on remand if it finds that the deadline for Parihar’s motion to reopen was tolled

because of IAC.
                                                                               page 3

      3. Parihar’s motion to reopen also alleges IAC and due process claims

because he wasn’t provided an interpreter at his asylum hearing. The BIA did

address these claims, citing evidence of Parihar’s facility with English—e.g., that

he communicated with his attorney in English and that his asylum application form

indicated he was fluent—and his decision to proceed in English at multiple

hearings, including the hearing in question. The BIA didn’t abuse its discretion in

rejecting these claims. See Lara-Torres v. Ashcroft, 383 F.3d 968, 972 (9th Cir.

2004); Maravilla Maravilla v. Ashcroft, 381 F.3d 855, 858 (9th Cir. 2004).


      The petition for review is GRANTED and the matter is REMANDED to

the BIA for proceedings consistent with this opinion.
