Khan v. Mukasey

286 F. App'x 372

Opinion

MEMORANDUM

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Adrian Hamid Khan, a native of Germany and citizen of Afghanistan, petitions for review of the Board of Immigration Appeals’ order summarily affirming an immigration judge’s (“IJ”) decision denying his motion to reconsider the IJ’s prior denial of his motion to reopen removal proceedings conducted in absentia. We have jurisdiction under 8 U.S.C. § 1252. We review the denial of a motion to reconsider for abuse of discretion, Lara-Torres v. Ashcroft, 383 F.3d 968, 972 (9th Cir.2004), and we grant the petition for review and remand.

The IJ abused his discretion in denying reconsideration where Khan identified legal error in the IJ’s order denying reopening. Contrary to the IJ’s conclusion, Khan’s motion to reopen was governed by Singh v. INS, 295 F.3d 1037, 1039-40 (9th Cir.2002) (exceptional circumstances existed when petitioner failed to appear for a hearing, but had appeared at all prior hearings and was eligible for adjustment of status). “[T]he INS should not deny reopening of an in absentia deportation order where the denial leads to the unconscionable result of deporting an individual eligible for relief from deportation.” Id. at 1040.

We grant the petition for review and remand to the BIA for consideration of the merits of Khan’s application for adjustment of status.

PETITION FOR REVIEW GRANTED; REMANDED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.