Atilano-Garcia

MEMORANDUM **

Luz Marina Atilano-Garcia, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (BIA) denial of her motion to reconsider and reopen its summary affirmance of an immigration judge’s (IJ) denial of her application for cancellation of removal. Atilano-Garcia sought to reopen proceedings to seek adjustment of status to that of a lawful permanent resident through her United States citizen son. The BIA determined that Atilano-Garcia could have, but failed to, present to the IJ the evidence of her eligibility to adjust status. We have jurisdiction over her timely petition under 8 U.S.C. § 1252 (a). We review for abuse of discretion, see INS v. Doherty, 502 U.S. 314, 324 , 112 S.Ct. 719 , 116 L.Ed.2d 823 (1992), and we grant the petition to remand with instructions to reopen.

The BIA abused its discretion when it denied Atilano-Garcia’s motion to reopen because it based its denial on a distortion of the facts — its finding that Atilano-Garcia’s 1-130 application was not “new evidence” because it could have been presented at the earlier hearing before the IJ. This holding is contrary to the record and to the agency’s own position. The IJ…