Castro-Gonzalez

MEMORANDUM **

*791 Petitioner Ignacio Ebelio Castro-Gonzalez (“Castro”), a Guatemalan native and citizen, appeals the Board of Immigration Appeal’s (“BIA”) denial of his motion to reopen deportation proceedings to apply for relief under the Convention Against Torture (“CAT” or “Convention”). We have jurisdiction to review the BIA’s denial of Castro’s motion to reopen under section 2242(d) of the Foreign Affairs Reform and Restructuring Act of 1998, Pub.L. No. 105-277, Div. G, 112 Stat. 2681 , 2681-761 (1998) (codified at 8 U.S.C. § 1231 ). For the following reasons, we find that the BIA abused its discretion and, in turn, vacate the BIA’s order and remand for further proceedings.

The parties are familiar with the facts and the procedural history of the case. Thus, we do not repeat them here.

I.

We review the BIA’s denial of Castro’s motion to reopen for an abuse of discretion. Kamalthas v. INS, 251 F.3d 1279, 1281 (9th Cir.2001). Any underlying legal issues, including Castro’s claim of a due process violation in deportation proceedings, are reviewed de novo. Perez-Lastor v. INS, 208 F.3d 773, 777 (9th Cir.2000). “The BIA abuses its discretion when it fails to offer a reasoned…

dissenting.

As I read the BIA’s decision, the BIA assumed that Castro-Gonzalez’s testimony was credible, and so did not over-rely on the adverse credibility finding. Regarding the BIA’s failure to consider the 2002 State Department report, I do not see any reference in Castro-Gonzalez’s briefs to the Board to that report, so Abassi v. INS, 305 F.3d 1028 (9th Cir.2002), does not apply. Indeed, had the BIA based its decision upon reports neither discussed nor alluded to in the record, it would probably have violated due process. See Getachew v. INS, 25 F.3d 841, 846 (9th Cir.1994). Accordingly, I respectfully dissent.