Manalo

MEMORANDUM **

Emerrito Canlapan Manalo (“Manalo”) appeals from the decision of the Board of Immigration Appeals (“BIA”) denying his request for a discretionary waiver of deportation pursuant to INA § 241(a)(1)(H), 8 U.S.C. § 1251 (a)(1)(H) (1994). 1 We grant the petition for review and remand. Because the facts are familiar to the parties, we recount them only as necessary to explain our decision.

1. INA § 241(a)(1)(H) gives the Attorney General discretion to waive deportation of an alien who meets certain statutory eligibility requirements. 2 There is no dispute that Manalo met the § 241(a)(1)(H) eligibility requirements; the only issue is whether the BIA abused its discretion in denying this waiver. To the extent that the BIA adopted the decision of the Immigration Judge (“IJ”), we review the IJ’s decision; otherwise, our review is limited to the BIA’s decision. Garrovillas v. INS, 156 F.3d 1010, 1013 (9th Cir.1998).

2. In 1994, when the IJ entered his decision, Ninth Circuit precedent precluded him from considering in the § 241(a)(1)(H) discretionary determination Manalo’s fraud in obtaining a visa and entering the United States (the “initial fraud”). Braun v. INS, 992 F.2d…