Sagastume

*412 MEMORANDUM ***

Jose Aceituno Sagastume, a native and citizen of Guatemala, petitions for review of the decision of the Board of Immigration Appeals denying his motion to reopen deportation proceedings to apply for relief under the Convention Against Torture (“CAT”). Because the transitional rules apply, see Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997), we have jurisdiction under 8 U.S.C. § 1105a(a). We grant the petition for review.

The BIA denied Sagastume’s motion for failure to demonstrate prima facie eligibility for relief under the CAT due to the adverse credibility finding made as to his asylum and withholding claims. However, “the BIA cannot deny a motion to reopen without recognizing the proper standard for establishing a prima facie case and giving weight to the relevant country conditions.” Kamalthas v. INS, 251 F.3d 1279 (9th Cir.2001). We vacate and remand for further BIA review.

The decision in Barahona-Gomez v. Ashcroft, 243 F.Supp.2d 1029 (N.D.Cal.2002), does not apply to Sagastume because he never applied for suspension of deportation. Sagastume’s contention that NACARA violates his equal protection rights is without merit. See Jimenez-Angeles v.…