Garcia

MEMORANDUM **

Epifanio Garcia, native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) denial of his motion to reopen his appeal that was dismissed as untimely. We have jurisdiction pursuant to 8 U.S.C. § 1252 . We review for abuse of discretion the denial of a motion to reopen, Celis-Castellano v. Ashcroft, 298 F.3d 888, 890 (9th Cir.2002), and we grant the petition for review.

In 1997, Garcia filed an untimely appeal of the IJ’s order of removal. The BIA did not dismiss the appeal as untimely until August 30, 2002. Garcia filed a motion to reopen, asserting ineffective assistance of counsel, and indicating that, while his untimely appeal was pending, an immigration judge determined that Garcia’s wife was eligible for cancellation of removal. The BIA denied the motion to reopen on the ground that Garcia failed to establish the requisite prejudice resulting from his counsel’s failure to file a timely appeal from the IJ’s decision.

Garcia contends that had the appeal been timely filed, he would have been able to present this information to the BIA while his appeal was pending. This contention has merit. Cf. Ramirez-Alejandre v. Ashcroft,…