Minasyan v. Gonzales

MEMORANDUM ** Martin Minasyan (“Minasyan”) appeals the Board of Immigration Appeals’ (“BIA”) decisions affirming Immigration Judges’ (“IJ”) decisions denying Minasyan’s Motion to Reopen his in absentia removal and upholding the rescission of the adjustment of Minasyan’s status to permanent resident alien. The BIA abused its discretion by applying the wrong test to determine Minasyan’s Motion to Reopen was not entitled to equitable tolling. Minasyan’s Motion to Reopen was entitled to equitable tolling because he was defrauded by a nonattorney, Lopez v. INS, 184 F.3d 1097, 1100 (9th Cir.1999). Further, he did not lack diligence in discovering the fraud because the record does not establish Minasyan was represented at his removal hearing by an attorney, Rodriguez-Lariz v. INS, 282 F.3d 1218, 1226 (9th Cir.2002). Because the BIA explicitly limited its analysis to equitable tolling, we reverse and remand to the BIA for consideration of whether exceptional circumstances exist to reopen Minasyan’s in absentia removal. Varela v. INS, 204 F.3d 1237, 1240 (9th Cir.2000). We do not have jurisdiction under 8 U.S.C. § 1252 to consider the rescission of Minasyan’s adjustment of status because the rescission of Minasyan’s adjustment of status is not inextricably intertwined with his removal. Waziri v. INS, 392 F.2d 55, 56 (9th Cir.1968). We note, however, that if the BIA grants the requested reopening, Minasyan may immediately thereafter be eligible for adjustment of status. 8 U.S.C. § 1229a(b)(7); 8 U.S.C. § 1255 (a). Furthermore, regardless of the outcome on remand, Minasyan may become eligible for adjustment of status on September 27, 2007. Id. REVERSED AND REMANDED in part, DISMISSED in part. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.