Pacheco

*479 MEMORANDUM ***

Miriam Xiomara Pacheco, a native and citizen of Honduras, petitions for review of the Board of Immigration Appeals’ (“BIA”) order summarily affirming an immigration judge’s (“IJ”) order denying her motion to reopen proceedings in which she was deported in absentia. We review for abuse of discretion, Singh v. INS, 213 F.3d 1050, 1052 (9th Cir.2000), and we grant the petition for review and remand for further proceedings.

Pacheco has resided in the United States for sixteen years, along with her seven United States citizen children. According to the record, Pacheco was the victim of fraud by an unscrupulous notario, Carlos Quantanilla. In her declaration, Pacheco states that she sent Quantanilla her new address in 1995. Pacheco did not hear from Quantanilla again and was unable to locate him. Pacheco never received the hearing notice. In 1998, Quantanilla was convicted of grand theft for taking advantage of Latino immigrants.

The IJ concluded that Pacheco did not demonstrate due diligence in discovering the fraud which caused her to file an untimely motion to reopen. However, the IJ failed to consider Pacheco’s mental capacity in determining whether she acted…