                                                                     NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                      No. 13-3020
                                   ________________

                  RAYMOND PATRICIO TERRANOVA-MACIAS,
                       a/k/a Raymond Patricio Terranova,

                                                        Petitioner

                                            v.

              ATTORNEY GENERAL UNITED STATES OF AMERICA

                                                        Respondent
                                   ________________

                       On Petition for Review of a Final Order
                        of the Board of Immigration Appeals
                   Immigration Judge: Honorable Walter A. Durling
                                 (No. A042-078-731)
                                 ________________

                       Submitted Under Third Circuit LAR 34.1(a)
                                     June 9, 2014

             Before: AMBRO, GREENBERG, and BARRY, Circuit Judges

                              (Opinion filed: June 19, 2014)
                                   ________________

                                       OPINION
                                   ________________

AMBRO, Circuit Judge

      Raymond Patricio Terranova-Macias is a native of Ecuador who had been residing

in the United States as a lawful permanent resident (“LPR”) prior to the events leading to
this proceeding. In September 2010, he was convicted of conspiracy to commit money

laundering in violation of 18 U.S.C. § 1956(h) and subsequently was sentenced to

eighteen months’ imprisonment. The Department of Homeland Security (“DHS”)

initially charged Terranova-Macias with inadmissibility under 8 U.S.C. § 1182(a)(2)(I)(i)

for having engaged in money laundering, as well as violating 8 U.S.C. § 1182(a)(2)(A)(i)

for having been convicted of a crime involving moral turpitude.

      Initially, the immigration judge (“IJ”) found Terranova-Macias removable on both

charges and denied his various requests for relief. The BIA remanded for the IJ to

determine, with appropriate fact-finding, whether DHS had shown by clear and

convincing evidence that Terranova-Macias should be classified as a candidate for

admission. 1 On remand, the IJ found that he was “not properly classified as an arriving

alien[.]” App. at 28. As a result, Terranova-Macias could not be removed under the cited

provisions and the IJ terminated the proceedings.

      DHS timely filed a motion to reopen the proceedings under 8 C.F.R. § 1003.23,

which the IJ granted over Terranova-Macias’s objection. In support of this motion, DHS

filed a Form I-261, which alleged that Terranova-Macias was removable as an alien who

committed an aggravated felony after admission under 8 U.S.C. § 1227(a)(2)(A)(iii). A

different IJ held a hearing and found Terranova-Macias removable as an aggravated

felon. The same order found no jurisdiction to readdress the previous IJ’s denial of

1
  Terranova-Macias was attempting to re-enter the country at John F. Kennedy
International Airport when he was stopped by customs agents, purportedly based on the
discovery of an outstanding warrant. He was then paroled into the United States to await
criminal prosecution. Being “admitted” to the United States represents a technical legal
status and is not synonymous with physical presence.
                                            2
asylum, withholding of removal, and relief under the Convention Against Torture.

Terranova-Macias appealed to the BIA, which affirmed. He petitions for review of the

BIA’s decision. 2

         In support of his petition, Terranova-Macias argues that the Board erred in

upholding the granting of the motion to reopen. We review BIA decisions regarding

motions to reopen for abuse of discretion. See Liu v. Attorney Gen., 555 F.3d 145, 148

(3d Cir. 2009). In particular, Terranova-Macias argues that DHS’s motion did not

comply with 8 C.F.R. § 1003.23(b)(3), which states in relevant part that “[a] motion to

reopen proceedings shall state the ne w facts that will be proven at a hearing to be held if

the motion is granted and shall be supported by affidavits and other evidentiary material. ”

Here, Terranova-Macias contends that DHS did not allege new facts to be proven or

provide additional evidence beyond the Form I-261 in support of its motion.

         The regulation further states that “[a] motion to reopen will not be granted unless

the Immigration Judge is satisfied that evidence sought to be offered is material and was

not available and could not have been discovered or presented at the former hearing.” 8

C.F.R. § 1003.23(b)(3). Despite this requirement, the BIA neither cited § 1003.23(b)(3)

nor discussed its application to our case. 3 Instead, it summarily disposed of Terranova-

Macias’s objection to the grant of the motion to reopen by noting that charges of



2
    We have jurisdiction to review a final order of removal under 8 U.S.C. § 1252.
3
 Because the BIA analyzed the issue directly, rather than adopting or deferring to any
conclusion of the IJ, we look only to the BIA’s decision. See Abdulai v. Ashcroft, 239
F.3d 542, 549 n.2 (3d Cir. 2001).
                                               3
removability may be added at any time during the proceedings and that DHS had moved

to reopen before the prior order became final.

       This cursory explanation is insufficient. See Hailemichael v. Gonzales, 454 F.3d

878, 884 (8th Cir. 2006). As we have noted, “a court must evaluate the propriety of an

agency action solely on the grounds invoked by the agency in its initial determination. If,

as in this case, those grounds are inadequate or improper, the agency action must be set

aside.” Moret v. Karn, 746 F.2d 989, 992 (3d Cir. 1984) (citing SEC v. Chenery Corp.,

332 U.S. 194, 196-97 (1947)). Because we are not empowered to evaluate for ourselves

whether the regulation was complied with, the BIA’s silence is dispositive. See id.

(“[T]his court is not free to uphold the agency’s determination on the basis of a post-hoc

rationalization by the government. Neither may this court supply its own justification for

the decision of the INS.” (internal citation omitted)).

       Under these circumstances, the appropriate remedy is to allow the BIA to make

the decision in the first instance. See INS v. Orlando Ventura, 537 U.S. 12, 16-17 (2002).

Therefore, we remand the case for a determination whether the grant of the motion to

reopen was proper in view of § 1003.23(b)(3).4 Accordingly, we grant the petition for

review, vacate the BIA’s order, and remand the matter for further proceedings.




4
  Terranova-Macias raised a number of additional claims both before the BIA and in his
brief. In light of our resolution of his first claim, we need not reach them at this time.
                                              4
