Garcia-Barreto
Garcia-Barreto v. Holder
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).