Tarlock Singh v. Eric Holder, Jr.
771 F.3d 647
| 9th Cir. | 2014Background
- Singh was subject to a final order of removal after an IJ denied asylum, withholding of removal, and CAT relief in 2008.
- Singh timely filed a motion to reopen in February 2010 to pursue an adjustment of status before USCIS based on a bona fide marriage to a US citizen and an approved USCIS visa petition.
- The Board denied reopening, relying on Matter of Yauri (2009), and held it lacked authority to reopen where USCIS, not the IJ or BIA, had jurisdiction over the adjustment application.
- Singh argued reopening was permissible under 8 C.F.R. § 1003.2(a) to afford time for USCIS to adjudicate his pending adjustment application.
- The BIA suggested Singh should seek a stay of removal from DHS, which would be reviewable only in limited circumstances.
- The Ninth Circuit held the BIA’s interpretation of its authority under § 1003.2(a) was inconsistent with the regulation’s plain language and Kalilu, and remanded for proper exercise of discretion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BIA may reopen proceedings under § 1003.2(a) for an adjustment of status before USCIS. | Singh; authority exists to reopen under § 1003.2(a). | Board relied on Yauri to deny reopening absent jurisdiction over adjustment. | Yes; BIA has authority to reopen under § 1003.2(a). |
| Whether Matter of Yauri correctly limited BIA reopening authority. | Yauri misinterprets 1003.2(a) and Kalilu. | Yauri governs stays and authority over related matters. | Yauri misapplied; the plain language supports reopening under 1003.2(a). |
| Whether Kalilu supports BIA denial of reopening based on adjustment jurisdiction. | Kalilu held Board may reopen to allow USCIS adjudication of adjustment. | Kalilu cannot control when BIA’s stay authority is in play. | Kalilu supports reopening; Board abuse of discretion to deny. |
Key Cases Cited
- Kalilu v. Mukasey, 548 F.3d 1217 (9th Cir. 2008) (Board may reopen to provide time for USCIS to adjudicate adjustment)
- Matter of Yauri, 25 I. & N. Dec. 103 (BIA 2009) (Board denied reopening when adjustment adjudication is with USCIS)
- Lal v. INS, 255 F.3d 998 (9th Cir. 2001) (regulation’s plain language controls over agency interpretation)
- Hashmi, 24 I. & N. Dec. 785 (BIA 2009) (recognition of Board authority to reopen to permit adjustment)
- Garcia, 16 I. & N. Dec. 653 (BIA 1978) (reopening to permit adjustment considerations)
- Arthur, 20 I. & N. Dec. 475 (BIA 1992) (related authority on adjustment-related reopenings)
- Dada v. Mukasey, 554 U.S. 1 (U.S. 2008) (safeguards and rights considerations in immigration reviews)