
    Sonny MESBAH, Plaintiff-Appellant, v. John ASHCROFT, Attorney General of the United States Department of Justice, in his official capacity and as agency head, Defendant-Appellee.
    No. 99-57017.
    D.C. No. CY 99-06877-JSL.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted June 4, 2001.
    Decided July 25, 2001.
    
      Before TROTT, McKEOWN, and W. FLETCHER, Circuit Judges.
    
      
       John Ashcroft, Attorney General of the United States, is substituted for his predecessor, Janet Reno, Fed. R.App. P. 43(c)(2).
    
   MEMORANDUM

Sonny Mesbah appeals the district court’s dismissal of his complaint pursuant to Rule 12(b)(6). At oral argument, the attorney for the government conceded that Mesbah’s Title VII claim based on his non-selection for a deportation officer position in January 1997 should not have been dismissed. We .agree. We address the disputed issues in the discussion that follows. Because the parties are familiar with the facts and prior proceedings, we do not restate them unless necessary.

I

At oral argument, Mesbah contended that the district court erred by not allowing him leave to amend his complaint to restate claims made under the Americans with Disabilities Act as claims under the Rehabilitation Act of 1973. Mesbah waived this issue before us by not arguing it in his opening brief. Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1110 n. 1 (9th Cir.2000) (en banc) (“[T]he law of this circuit is that issues not raised in a party’s opening brief are waived.”). Our holding that the issue has been waived before us does not preclude the district court from deciding in its discretion, following remand, whether Mesbah should be allowed to amend his complaint to restate the claims.

II

In its motion to dismiss in the district court, the government argued that Mes-bah’s Title VII claims based on religious discrimination had not been exhausted. The district court granted the government’s motion but did not make a written order. We reverse the district court on this issue.

Mesbah’s religious discrimination claim was not included in his original EEOC charge. New claims “may not be considered by a federal court unless the new claims are like or reasonably related to the allegations contained in the EEOC charge.” Sosa v. Hiraoka, 920 F.2d 1451, 1456 (9th Cir.1990) (quotation marks omitted). In analyzing whether claims are “reasonably related,” we look to “the scope of an EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.” Id. (quotation marks omitted). In Mesbah’s first informal interview with the EEO counselor, he said that he thought he was being discriminated against on account of both national origin and religion. We hold that it can be reasonably expected that the EEOC investigation would have explored the possibility of discrimination based on religion, and therefore that Mesbah has exhausted his religious discrimination claim. Our holding does not change the scope of the factual allegations underlying Mesbah’s action. Rather, it allows Mesbah to proceed with a second theory of discriminatory motivation based on the same allegations.

III

The government at oral argument conceded that the discrimination claim based on Mesbah’s non-selection for a deportation officer position in January 1997 should not have been dismissed, but the government argued that Mesbah had not exhausted his later claims, which were based on alleged retaliation.

To decide whether retaliation claims require the filing of a new complaint, we look to whether the claims are “part and parcel” of other exhausted claims or whether they “raise[ ] a different theory of discrimination ... or [are] not directly related to the earlier claims.” Anderson v. Reno, 190 F.3d 930, 938 (9th Cir.1999). The complaint in the present case explicitly links the retaliatory conduct with the earlier discrimination:

The aforementioned acts and omissions of defendant constitute unlawful discrimination against plaintiff because of his national origin and religion. They also constitute unlawful retaliation for plaintiffs involvement in protected activity. The herein described activities of defendants, constitute a continuing series of related discriminatory acts and a systematic policy, pattern and practice of discrimination by defendants targeting plaintiff because of his national origin, religion and involvement in protected activity ....

Complaint ¶ 45. In reviewing a 12(b)(6) dismissal, “the court must presume all factual allegations of the complaint to be true and draw all reasonable inferences in favor of the nonmoving party.” Knevelbaard Dairies v. Kraft Foods, Inc., 232 F.3d 979, 984 (9th Cir.2000) (quotation marks omitted). The factual allegations in the complaint are sufficient to support the inference that the actions alleged in the complaint after January 1997 were part of a larger pattern of discrimination. Accordingly, the district court erred in dismissing these claims.

REVERSED AND REMANDED. 
      
       This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.
     