
    NGHI XUAN TRAN, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.
    No. 07-73741.
    United States Court of Appeals, Ninth Circuit.
    
      Submitted Feb. 16, 2010.
    
    Filed Feb. 22, 2010.
    Michael T. Purcell, Portland, OR, for Petitioner.
    Stephen Elliott, Esquire, Aviva Poczter, U.S. Department of Justice, Washington, DC, Ronald E. Lefevre, Office of the District Counsel Department of Homeland Security, San Francisco, CA, for Respondent.
    Before: FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.
    
      
       The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
    
   MEMORANDUM

Nghi Xuan Tran, a native and citizen of Vietnam, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s decision denying his special motion to seek § 212(c) relief. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, Avila-Sanchez v. Mukasey, 509 F.3d 1037, 1039 (9th Cir.2007), and we grant the petition for review and remand.

We remand to the BIA to explain its reasons for denying Tran’s special motion to seek § 212(c) relief filed pursuant to 8 C.F.R. § 1003.44(d). See Mohammed v. Gonzales, 400 F.3d 785, 792 (9th Cir.2005). The BIA appears to have denied Tran’s motion because he chose not to file an application for a § 212(c) waiver at his hearing in 2003, but does not explain on what grounds this bars the subsequent filing of a special motion to seek such relief. See 8 C.F.R. § 1003.44(d) (“A motion under this section will not be granted with respect to any conviction where an alien has previously been denied section 212(c) relief by a immigration judge or by the Board on discretionary grounds.”) (emphasis added).

PETITION FOR REVIEW GRANTED; REMANDED. 
      
       This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
     