Jorge Capuchino-Lopez v. Loretta E. Lynch

671 F. App'x 637

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 20, 2016
• Docket: 14-73435
• Status: Unpublished

Opinion

MEMORANDUM **

Jorge Luis Capuchino-Lopez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals (“BIA”) order denying his motion to reopen removal proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen. Singh v. Holder, 771 F.3d 647, 650 (9th Cir. 2014). We grant in part and dismiss in part the petition for review, and remand.

Capuchino-Lopez 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 Capuchi-no-Lopez’ final order of removal rendered him ineligible for the waiver. However, the BIA abused its discretion in denying Ca-puchino-Lopez’ 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 in part and remand for further proceedings.

We grant Capuchino-Lopez’ motion to take judicial notice of the BIA’s January 20, 2015, decision and the approval notice of his 1-130 visa petition (Docket Entry No. 13). See Dent v. Holder, 627 F.3d 365, 371 (9th Cir. 2010) (taking judicial notice of agency records).

Capuchino-Lopez contends that the BIA erred in its October 7, 2014, decision by determining that he had not submitted evidence that an 1-130 petition had been filed on behalf. However, the BIA’s subsequent January 20, 2015, decision, which was included with Capuchino-Lo-pez’ motion to take judicial notice, ex pressly corrected the BIA’s earlier error in this regard. Accordingly, we dismiss this contention as moot. See Pedroza-Padilla v. Gonzales, 486 F.3d 1362, 1364 n.2 (9th Cir. 2007); see also United States v. Strong, 489 F.3d 1066, 1069 (9th Cir. 2007) (“An appeal is moot when, by virtue of an intervening event, a court of appeals cannot grant any effectual relief whatever in favor of the appellant.” (citation and internal quotation marks omitted)).

Capuchino-Lopez’ motion for remand to the BIA pending the outcome of his recent application for Deferred Action for Child-, hood Arrivals (Docket Entry No. 26) is denied as unnecessary.

Each party shall bear its own costs for this petition for review.

PETITION FOR REVIEW GRANTED in part; DISMISSED in part; and REMANDED.

** This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.