Barrocan

MEMORANDUM **

Levita Barrocan and her sons petition for review of a Board of Immigration Appeals’ (“BIA”) decision affirming the immigration judge’s decision to deny the Barrocans’ motion to reconsider an order denying their motion to reopen deportation proceedings.

This petition returns to us after we previously remanded the case to the BIA for reconsideration in light of Konstantinova v. INS, 195 F.3d 528 (9th Cir.1999). Bar *262 rocan v. INS, 202 F.3d 277 , 1999 WL 1062673 (9th Cir.1999) (unpublished). In Konstantinova, we held that the BIA’s decision dismissing an appeal was arbitrary because the facts in that case were indistinguishable from the BIA’s decision in Matter of Yewondwosen, 211. & N. Dec. 1025, 1997 WL 560960 (BIA 1997). Konstantinova, 195 F.3d at 530 . In Yewondwosen, the BIA held that it could, in its discretion, grant procedurally defective motions for remand if the INS had affirmatively joined the applicant’s motion. Yewondwosen, 211. & N. Dec. 1025.

In Konstantinova , the petitioner had filed a motion to remand with the same procedural defect at issue in Yewondwosen, and the INS had not filed an opposition to the motion. Konstantinova, 195 F.3d at 530 . We…