Demian

MEMORANDUM **

Marcel Demian and her three children, all natives and citizens of Egypt, appeal from a decision of the Board of Immigration Appeals’ (“BIA”) denying their motion to reopen deportation proceedings and their motion to reconsider the BIA’s order affirming the Immigration Judge’s in absentia deportation order. Because the transitional rules apply, see Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997), we have jurisdiction pursuant to 8 U.S.C. § 1105a(a).

We review for abuse of discretion the BIA’s denial of motions to reopen and to reconsider. Saldana v. INS, 762 F.2d 824, 827 (9th Cir.1985). Under the abuse of discretion standard, the decision of the BIA will be upheld unless it is arbitrary, irrational, or contrary to law. Id. We grant the petition in part, deny it in part, and remand.

Pursuant to 8 C.F.R. § 3.2 (c)(2), a petitioner is limited to one motion to reopen. The single-motion limitation, however, does not apply to motions to rescind an in absentia order of deportation. Fajardo v. INS, 300 F.3d 1018, 1020 (9th Cir.2002). Accordingly, the BIA abused its discretion by determining that the Demians’ motion to reopen was precluded because it was their second…