Garcia-Barreto

Garcia-Barreto v. Holder

Good Law
349 F. App'x 239
United States Court of Appeals for the Ninth CircuitOctober 26, 2009No. 07-73207California229 words

Opinion

Lead Opinion

MEMORANDUM **

Juan Garcia-Barreto, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen removal proceedings. We have jurisdiction pursuant to 8 U.S.C. § 1252 . We review for abuse of discretion the denial of a motion to reopen. Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003). We grant the petition for review and remand.

The BIA abused its discretion by determining that Garcia-Barreto failed to present previously unavailable evidence because the record shows that the evidence concerning his son’s conditions could not have been discovered prior to the hearing. See 8 C.F.R. § 1003.2 (a)(c).

The BIA further abused its discretion by requiring a conclusive showing of the requisite hardship, see Ordonez v. INS, 345 F.3d 777, 785 (9th Cir.2003) (conclusive showing that eligibility for relief has been *240 established not required), and by failing to consider all the evidence submitted, including the bi-polar disorder diagnosis, see Mohammed v. Gonzales, 400 F.3d 785, 792 (9th Cir.2005) (failure to consider evidence submitted with motion constituted an abuse of discretion).

We remand for the BIA to…

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