FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TAJADDIN RAFAIL ALIYEV,

Petitioner,

v.

WILLIAM P. BARR, Attorney

General,

Respondent.

No. 19-72701

Agency No.

A098-516-120

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted August 17, 2020*

San Francisco, California

Filed August 24, 2020

Before: Susan P. Graber, Richard C. Tallman, and

Richard R. Clifton, Circuit Judges.

Opinion by Judge Graber

*

 The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).
2 ALIYEV V. BARR

SUMMARY**

Immigration

Granting Tajaddin Aliyev’s petition for review of the

Board of Immigration Appeals’ decision denying his second

motion to reopen asylum proceedings based on changed

country conditions, and remanding, the panel held that the

Board abused its discretion by determining that a non-citizen

who seeks to reopen an earlier application for relief, and

attaches that application to the motion, has failed to attach the

“appropriate application for relief” as required by 8 C.F.R.

§ 1003.2(c)(1). 

Aliyev sought to reopen proceedings for consideration of

the same basis for asylum relief he asserted in his original

asylum application—political opinion—in light of changed

country conditions. The panel explained that the plain and

unambiguous text of § 1003.2(c)(1) does not require someone

in Aliyev’s shoes to attach a new application for relief to a

motion to reopen. Rather, it requires that a non-citizen who

moves to reopen proceedings “for the purpose of submitting

an application for relief” attach to that motion the

“appropriate application for relief.” In this circumstance, the

panel concluded that the “appropriate application for relief”

was Aliyev’s original asylum application, which he attached

to and referenced throughout his motion. 

In a concurrently filed memorandum disposition, the

panel addressed how the Board erred by concluding, in the

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
ALIYEV V. BARR 3

alternative, that Aliyev did not show the changed country

conditions necessary to avoid 8 C.F.R. § 1003.2(c)(2)’s time

and number bars on his second motion to reopen, and also

addressed two other petitions arising from Aliyev’s journey

through the immigration courts.

COUNSEL

Corrine Nikolenko, Nashia, New Hampshire; Michael W.

Schoenleber, Schoenleber & Waltermire PC, Sacramento,

California; for Petitioner.

Joseph Hunt, Assistant Attorney General; Virginia Lum,Trial

Attorney; Office of Immigration Litigation, Civil Division,

United States Department of Justice, Washington, D.C.;

Nancy Friedman, Senior Litigation Counsel, United States

Department of Justice, Washington, D.C.; for Respondent.

OPINION

GRABER, Circuit Judge:

Petitioner Tajaddin Aliyev, a native of the Soviet Union

and a citizen of Azerbaijan, seeks review of the Board of

Immigration Appeals’ (“BIA”) denial of his second motion to

reopen his asylum proceedings. Relying on 8 C.F.R.

§ 1003.2(c)(1), which requires that a non-citizen attach the

“appropriate application for relief” to a motion to reopen, the

BIA denied Petitioner’s motion because he did not attach a

new asylum application to it. Petitioner did, however, attach

his prior asylum application—the one he sought to reopen.
4 ALIYEV V. BARR

We have jurisdiction under 8 U.S.C. § 1252. We hold

that the BIA abused its discretion by determining that a noncitizen who seeks to reopen an earlier application for relief

and attaches that application to the motion 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 motion to reopen). We therefore grant the

petition and remand.1

For our purposes in this opinion, the events that befell

Petitioner in Azerbaijan and that led him to come to the

United States do not affect our analysis. To make a long

story short, Petitioner fled Azerbaijan in 2003 and entered the

United States in October of that year. In 2004, he timely

applied for asylum, fearing persecution on account of

political opinion. An immigration judge denied asylum and

all other forms of relief, and the BIA affirmed. Petitioner

filed his first motion to reopen in 2015, which the BIA

denied.

In 2018, Petitioner filed a second motion to reopen,

contending that changed conditions in Azerbaijan justified the

untimely second motion, supported his fear of persecution on

account of political opinion, and required the agency to grant

his asylum application. As relevant here, the BIA denied that

motion because Petitioner failed to submit a new asylum

1

In a concurrently filed memorandum disposition, we explain how

the BIA erred by concluding, in the alternative, that Petitioner did not

show the changed country conditions necessary to avoid § 1003.2(c)(2)’s

time and number bars on his second motion to reopen. We also resolve

two other petitions arising from Petitioner’s journey through the

immigration courts.
ALIYEV V. BARR 5

application with the motion, even though he attached his

relevant 2004 asylum application and referred to that

application throughout his motion and even though the basis

for the asylum application—political opinion—was the same

as in 2004. The BIA cited § 1003.2(c)(1), which provides, in

relevant part: “A motion to reopen proceedings for the

purpose of submitting an application for relief must be

accompanied by the appropriate application for relief and all

supporting documentation.” Petitioner timely sought our

review.

The plain and unambiguous text of § 1003.2(c)(1) does

not require someone in Petitioner’s shoes to attach a new

application for relief to a motion to reopen. Instead, it

requires that a non-citizen who moves to reopen proceedings

“for the purpose of submitting an application for relief” attach

to that motion the “appropriate application for relief.” Id.

(emphasis added). The adjective “appropriate” is not defined

in the regulations. Accordingly, we rely on its ordinary

meaning. United States v. Bibbins, 637 F.3d 1087, 1091 (9th

Cir. 2011). “Appropriate” means “suitable or proper in the

circumstances.” New Oxford American Dictionary at 77 (3d

ed. 2010).

Here, Petitioner sought only to reopen his prior asylum

application because he believed that changed conditions in

Azerbaijan revived his previously denied claim for asylum,

and he sought asylum on precisely the same ground, political

opinion, as he had in his 2004 application. Petitioner attached

to his motion to reopen his prior asylum application (along

with evidence of the changed conditions in Azerbaijan). In

this circumstance, the prior asylum application that Petitioner

sought to reopen is the “suitable or proper” application to

attach. Both from the text of the regulation and from a
6 ALIYEV V. BARR

practical standpoint, it makes no sense to require someone in

Petitioner’s shoes to submit a new asylum application that is

identical to the earlier application. Indeed, the government

offers no textual defense of the BIA’s interpretation.

To our knowledge, no published decision has analyzed

the meaning of “appropriate application for relief” in the

circumstances present in this case. The decisions that cite the

pertinent sentence of § 1003.2(c)(1) feature analytically

distinct circumstances. For example, in Gen Lin v. Attorney

General, 700 F.3d 683, 689 n.5 (3d Cir. 2012), the Third

Circuit upheld the BIA’s denial of a motion to reopen where

the petitioner “did not file an accompanying application for

relief of any kind.” By contrast here, Petitioner did attach the

relevant application for relief to his motion to reopen.

In other cases, the petitioner was denied one or more

forms of immigration relief and later moved to reopen

proceedings to seek an entirely different type of relief that the

petitioner had not sought previously. See, e.g., Young Sun

Shin v. Mukasey, 547 F.3d 1019, 1025 (9th Cir. 2008) (new

request for adjustment of status); Palma-Mazariegos v.

Keisler, 504 F.3d 144, 147 (1st Cir. 2007) (per curiam)

(same); Waggoner v. Gonzales, 488 F.3d 632, 639 (5th Cir.

2007) (new request for asylum); see also Konstantinova v.

INS, 195 F.3d 528, 530–31 (9th Cir. 1999) (holding that the

BIA abused its discretion by rejecting, under the predecessor

regulation to § 1003.2(c)(1), an unopposed motion to remand,

even when the form of relief sought was new); Matter of

Yewondwosen, 21 I. & N. Dec. 1025, 1027 (BIA 1997)

(holding, under the predecessor regulation to § 1003.2(c)(1),

that the BIA may grant a procedurally defective motion to

remand if the government “affirmatively joins the motion”). 

Similarly, in Lin Xing Jiang v. Holder, 639 F.3d 751, 753–54
ALIYEV V. BARR 7

(7th Cir. 2011), the Seventh Circuit suggested in dictum that

the petitioner had failed to follow § 1003.2(c)(1) where the

petitioner originally applied for asylum on one ground,

unrelated to her religion, and later moved to reopen on an

entirely new ground for asylum: “persecution based on her

Catholic religion.” In all of those circumstances, the

“appropriate application for relief” would, 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 thus do not resolve the question before us. 

For all 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 for relief instead of his initial (relevant)

2 The government cites several of our unpublished dispositions, but

those decisions are not precedential. See 9th Cir. Rule 36-3(a)

(“Unpublished dispositions and orders of this Court are not precedent.”). 

Additionally, because the recitation of the facts is brief or non-existent, we

cannot determine whether those decisions involved the precise

circumstances here or whether they involved, as with the published

decisions described in text, circumstances 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 is not

written in a way that will be fully intelligible to those unfamiliar with the

case, and the rule of law is not announced in a way that makes it suitable

for governing future cases”). Moreover, none of the dispositions offered

any analysis beyond recitation of the regulatory text. In sum, our decision

today likely is fully consistent with our earlier dispositions; to the extent

that our decision conflicts with our earlier dispositions, we are

unpersuaded by their terse analyses.
8 ALIYEV V. BARR

application for relief. The BIA therefore abused its discretion

by denying Petitioner’s motion to reopen on that ground.

PETITION GRANTED AND REMANDED.