Diaz

MEMORANDUM **

Petitioner Carlos Solorio-Diaz petitions for review of the denial by the Board of Immigration Appeals (“BIA”) of his motion to reopen his application for cancellation of removal based on new evidence. As the parties are familiar with the facts, procedural history, and arguments, we will not recount them here. We review the BIA’s decision for the abuse of discretion. Monjaraz-Munoz v. INS, 327 F.3d 892, 895 (9th Cir.2003). We grant the petition.

The BIA rejected Solorio-Diaz’s motion because “he merely referred] the Board to [physical presence] evidence that the Immigration Judge correctly found lacking.” This is incorrect. Although Solorio-Diaz did refer the BIA to his previously submitted evidence, he also attached as exhibits two new declarations regarding his physical presence in the United States and referred to those exhibits in his motion. Due to the obvious incompetence of his counsel, this evidence was previously unavailable. Its implication is that the affiants have known Diaz to be in residence since 1985. The BIA abused its discretion in failing to consider this evidence. See Virk v. INS, 295 F.3d 1055, 1061 (9th Cir.2002); Limsico v. U.S. INS, 951 F.2d…

dissenting.

I agree with my colleagues that the numerical limitation barring Solorio-Diaz’s second motion to reopen should have been equitably tolled because he was the victim of unscrupulous conduct by a notary purporting to be an immigration specialist. I part company with the majority, though, in its holding that the BIA abused its discretion in denying that motion.

The majority incorrectly concludes that Solorio-Diaz is entitled to reopening because he has “now presented evidence, not previously available, that, although minimal, is sufficient to state a prima facie case for relief.” Even if the declarations from Solorio-Diaz’s sister and from a friend of his cousin qualified as new, previously unavailable evidence, which seems doubtful, they do not make a prima facie case because they do not provide evidence that Solorio-Diaz has been present in the United States for more than ten years. In each declaration the affiant merely states that Solorio-Diaz was in the United States in 1985, a fact that the government does not contest. The declarations do not make the necessary proffer that he has resided here ever since.

Furthermore, Solorio-Diaz nowhere makes the argument that…