FOR PUBLICATION



### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

T AJ AD D I N R AF AI L A L I YEV ,

Petitioner
,

v

.

W I L L I AM P. B AR

R , Attorney General, Respondent. No. 19-72701

Agency No. A098-516-120

OPINION

On Petition for Review of an Order of the Board of Imm igration Appeals

Subm itted August 17, 2020 * San Francisco, California

F iled August 24, 2020

Before: Susan P. Graber, Richard C. Tallm an, and Richard R. Clifton, Circuit Judges.

Opinion by Judge Graber

* The panel unanim ously concludes this case is suitable for decision without oral argum ent. See Fed. R. App. P. 34(a)(2).A L I YEV V

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SUMMARY * *

Immigration

Granting Tajaddin Aliyev’s petition for review o f the Board of Imm igration Appeals’ decision denying his second

m otion to reopen asylum proceedings based on changed country conditions, and rem anding, the panel held that the Board abused its discretion by determ ining that a non-citizen who seeks to reopen an earlier application for rel i e f, and attaches that application to the m otion, has failed to attach the “appropriate application f or relief” as required b y 8 C.F.R. § 1003.2(c)(1).

Aliyev sought to reopen proceedings for consideration o f the sam e basis for asylum relief he asserted in his o riginal asylum application—political opinion—in light of changed country conditions. The panel explaine d that the plain and

unam biguous text of § 1 003.2(c)(1) does not require som eone in Aliyev’s shoes to attach a new application for relief to a
m otion to reopen. Rather, it requires that a non-citizen who

m oves to reopen proceedings “for the purpose of subm itting

an application for relief” attach to that mo t ion the “appropriate application for relief.” In this circum stance, the panel concluded that the “appropriate application for relief”

was Aliyev’s original asylum application, which he attached to and referenced throughout his m otion.

In a concurrently filed m em orandum disposition, the p an e l addressed how the Board erred by concluding, in the

** This summ ary constitutes no part o f the opinion of the court. It h as been prepared by court staff for the convenience of the reader.A L I YEV V

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alternative, that Aliyev did not show th e c h anged country conditions necessary to avoid 8 C.F.R. § 1003.2(c)(2)’s tim e and num ber b ars on h is second m otion t o re o p en, and also addressed two other petitions arising from Aliyev’s journey through the imm igration courts.

C OUNSEL

Corrine Nikolenko, Nashia, New Ham pshire; Mich a e l W

. Schoenleber, Schoenleber & W alt erm ire PC, Sacram ento, California; for Petitioner.

Jo sep h H unt, Assistant Attorney G eneral; V irg in ia L um , T rial Atto rn ey; O ffice of Imm igration Litigation, Civil D ivision, United State s Departm ent o f Justice, W ashington, D.C.; Nancy Friedm an, Senior Li t i gation Counsel, United States Departm ent of Justice, W ashington, D.C.; for Respondent.

OPINION
GRABER, Circuit Judge:

Petitioner Tajaddin Aliyev, a n at ive of the S oviet Union and a ci t iz en of Azerbaijan, seeks review o f the Board o f Imm igration Appeals’ (“BIA”) denial of his second m otion to

reo p e n his asylum proceedings. Relying o n 8 C.F.R. § 1003.2(c)(1), which re quires that a non-citizen attach the “appropriate application for relief” to a m otion to reopen, the BIA denied Petitioner’s mo t i o n because he did not attach a
new asylum application to it. Petitioner d id, however, attach his prior asylumapplication—the one he sought to reopen.A L I YEV V

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W e have jurisdiction under 8 U.S.C. § 125 2

. We hold that the BIA abused its discretion by d eterm ining that a noncitizen who seeks to reope n an earlier application for relief and attaches that application to the m otion has failed to attach the “appropriate application for relief” as required by § 1003.2(c)(1). See Salim v. Lynch
, 831 F.3d 1133, 1137 (9th Cir. 2016) (holding that we review for abuse of discretion the BIA’s denial of a m o tion to reopen). W e therefore grant the petition and rem and. 1

For our p urposes in this opinion, the events that befell Petitioner in Azerbaijan and that l ed him to com e to the United States do not affect our analysis. To m ake a long story short, Petitioner f

led Azerbaijan in 2003 and entered the United States in October of th at year. In 2004, he tim ely

applied f or asylum
, fearing p ersecution on account o f political opinion. An imm igration judge denied asylum and all other form s of relief, and the BIA affi rme d

. Petitioner filed his first m otion to re o pe n in 2015, which the B IA denied.

In 2018, P etitioner filed a second mo t i o n to reopen,
co nten d in g th at ch an g ed co n d itio n s in Azerbaijan justif i ed th e untim ely second m otion, supported his fear o f persecution on account of political opinion, and required the agency to grant his asylum application. As relevant here, the BIA denied that

m otion because Petitioner failed to subm it a new asyl um

1 In a concurrently filed m em orandu m di s position, we explain how the BIA erred by concluding, in the altern a t ive, that Petitioner did not show the changed country conditions n ecessary to avoid § 1003.2(c)(2)’s tim e and num

ber bars on his second m o tion to reopen. W e a l s o resolve two other petitions arising fro m Petitioner’s journey through the im m igration courts.A L I YEV V

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application with the m oti o n , even though he attached his relevant 2004 asylum application and referred to that application throughout his m o tion and even though the basis for the asylum application—political opinion—was the sam e
as in 2004. The BIA cited § 1 003.2(c)(1), which provides, in relevant p art: “A m otion to reopen proceedings for the purpose of subm itt i n g an application for relief m ust be

accom p anied by the appropriate application for relief and all supporting docum e ntation.” Petitioner tim ely sought our review.

The p lain and unam

biguous text of § 1003.2(c)(1) does not re qui r e s om eone in Petitioner’s shoes to attach a new application for relief to a m otion to reopen. Instead, it requires that a non-citizen who m o ves to reopen proceedings “for the purpose o f subm itting an application for relief” attach to that m o tio n th e “ appropriate application for relief.” Id. (em phasis added). The adjective “appropriate” is n ot defined in the regulations

. Accordingly, we rely on its ordinary

m eaning. United States v. Bibbins
, 6 37 F.3d 1087, 1091 (9th Cir. 2011). “ Appropriate” m eans “suitable or proper in the circum stances.” New Oxford A merican Dictionary at 77 (3d ed. 2010).

Here, Petitioner sought only to r eopen his prior asylum application because he believed that changed conditions in Aze r b aijan revived his previously d enied claim f or asylum
, and he sought asylum on precisely the sam e ground, political opinion, as he had in his 2004 application. Petitioner attached to his m otion to r e o p e n his prior asylum application (along with eviden c e o f the changed conditions in Azerbaijan). In this circum stance, the prior asylum application that Petitioner

s ou g h t to reopen is the “suitable or proper” application t o
a t tach. Both from the text of the regulation and from aA L I YEV V

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practical standpoint, it m akes no sense to require som eone in Petitioner’s shoes to subm it a new asylum application that is identical to the earlier ap p lication. Indeed, the governm ent offers no textual defense of the BIA’s interpretation.

To our knowledge, no p ublished decision has ana l yzed the m eaning of “appropriate application for r e l i ef” in the circum stances present in this case. The decisions that cite the pertinent sentence of § 1003.2(c)(1) feature analytical l y distinct circum stances. For exam ple, in Gen Lin v. A ttorney General
, 700 F.3d 683, 6 89 n

. 5 (3d Cir. 2012), the Third Circuit upheld the BIA’s denial of a m otion to reopen where the petitioner “did not file an a c c o mp anying application for relief of any kind.” By contrast here, P etitioner did attach the relevant application for relief to his m otion to reopen.

In other cases, th e petitioner was denied one or m ore form s of imm igration relief and late r moved to reopen proceedings to seek an entirely different type of relief that the petitioner h ad not sought p reviously. See, e.g. , Young Sun Shin v. Mukasey
, 547 F. 3 d 1 0 19, 1 025 (9th Cir. 2008) (new request for adjustm ent of status); Palma-Mazariegos v. Keisler
, 504 F. 3 d 144, 147 (1st Cir. 2007) (per curiam ) (sam e); Waggoner v. Gonzales
, 4 88 F.3d 632, 639 (5th Cir. 2007) (new request for asylum ) ; s ee a lso Konstantinova v. INS
, 195 F.3d 528, 530–31 (9th Cir. 1999) ( ho ld i ng that the BIA abused its discretion b y rejecting, under the predecessor regulation to § 1003.2(c)(1), an unopposed m otion to rem and,

even when the form o f relief sought was new); Matter of Yewo n d wosen , 21 I. & N. Dec. 1025, 1027 (BIA 1 997) (holding, under the predecessor regulation to § 1003.2(c)(1), that the B IA m ay grant a p rocedurally defect i v e m otion to

rem and if the governm ent “affirm atively joins the m otion”). Sim ilarly, in Lin Xing Jiang v. H older
, 639 F.3d 7 5 1, 753–54A L I YEV V

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(7th Cir. 2011), the Seventh Circuit suggested in dictum that the p etitioner had failed to f ollow § 1003.2(c)(1) where the petitioner originally applied for a sylum on one g round, unrelated to her religion, and later m oved to reo pe n o n an entirely new ground for asylum : “persecution based on her Catholic re ligion.” In all of those circum stances, the “appropriate application for relief” w ould, of course, be new because the petitioner had not applied earlier for the particular form of relief for which he or she sought to reopen proceedings. 2

Those cases thu s d o not resolve the question before us. For al l of the reasons described above, when a petitioner seeks to reopen proceedings as to the original claim
, nothing in § 1003. 2 (c)(1) requires the petitioner to attach a new application f

or relief instead of his initial (relevant)

2 The governm ent cites several of our unpublished dis positions, but tho s e decisions are n ot precedential. See 9th Cir. Rule 36-3(a) (“Unpublished d ispositions and orders o f this Court are not precedent.”). Additionally, because the r ecitation of the facts i s brief or non-existent, w e cannot determ i n e whether those decisions involved the precise circu m s t a n c es here or whether t hey involved, as with the published decisions described in text, circum stances in which the petitioner sought reopening on a new ground. See, e.g. , Hart v. Massanari
, 266 F.3d 1155, 1177–78 (9th Cir. 2001) (holding that an unpublished “disposition i s not written i n a way that will be f ully i ntelligible to those unfam iliar with the
case, and the r

ule of law i s n ot announced in a way that m akes it suitable for governing future cases”). Moreover, none of the dispositions offered any analysis beyond recitation of the r egulatory t ext. In sum , our decision today likely is fully consistent with our earlier dispositions; to the extent that our decision conflicts w i th our earlier dispositions, we are unpersuaded by their terse analyses.A L I YEV V

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application for relief. The B IA therefore abused its discretion by denying Petitioner’s m otion to reopen on that ground.

PETITION GRANTED AND REMANDED.