Arnoldo Garcia v. Merrick Garland

background.’” Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016) (quoting Pllumi

v. Attorney General, 642 F.3d 155, 160 (3d Cir. 2011)). Garcia submitted a signed

declaration in support of his motion to reopen in which he stated that his guilty

plea was temporarily withdrawn and then reinstated pending further proceedings.

However, the BIA wrote in its decision that Garcia attached “no evidence in

2 support of these claims” about his criminal case. This was legal error; declaration

evidence is evidence for the purposes of a motion to reopen. Malty v. Ashcroft,

381 F.3d 942, 947 (9th Cir. 2004). Because we “cannot be certain” that the Board

denied sua sponte reopening based on a correct understanding of the law before it,

“the proper course . . . is to remand to the agency for additional investigation or

explanation.” Azanor v. Ashcroft, 364 F.3d 1013, 1021 (9th Cir. 2004) (quoting

I.N.S. v. Ventura, 537 U.S. 12, 16 (2002)) (alteration in original).

PETITION GRANTED IN PART, DISMISSED IN PART, AND

REMANDED.1

1 Garcia’s Motion for Stay of Removal (Dkt. No. 1) is denied as moot. The parties shall bear their own costs on appeal.

3