Sandoval Becerra v. Gonzales

MEMORANDUM **

Rosa Sandoval Becerra, and her husband, Augustin Jaime Martinez Prieto, natives and citizens of Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”) order denying their motion to reopen removal proceedings. We have *794 jurisdiction pursuant to 8 U.S.C. § 1252 . Reviewing for abuse of discretion, Bhasin v. Gonzales, 423 F.3d 977, 983 (9th Cir. 2005), we grant the petition for review.

The evidence Petitioners submitted with their motion to reopen indicates that their son’s medical condition was not diagnosed until after the IJ had denied Petitioners’ applications for cancellation of removal. Accordingly, the BIA abused its discretion in concluding that Petitioners failed to demonstrate that the evidence they presented with their motion was unavailable at their former hearing. See 8 C.F.R. § 1003.2 (c)(1); see also Bhasin, 423 F.3d at 987 (noting that where the evidence became available during the pendancy of an appeal it was not “previously available” for purposes of a motion to reopen).

We remand this case so that the agency may consider whether, in light of the new evidence presented, Petitioners have established eligibility for cancellation…