Garcia Iniguez v. Gonzales

MEMORANDUM **

Julio Cesar Garcia Iniguez, a native and citizen of Mexico, and Olga Dolores Garcia, *244 a native and citizen of Honduras, petition for review of the Board of Immigration Appeals’ (“BIA”) order denying their motion to remand to allow Garcia to apply for asylum with Garcia Iniguez as the derivative applicant. We have jurisdiction under 8 U.S.C. § 1252 . We review the denial of a motion to remand for abuse of discretion, Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir.2005), and we grant the petition for review.

The petitioners moved to remand on the ground that Garcia was a victim of gender-based violence in Honduras and the Attorney General recently recognized gender as a basis for asylum. The BIA denied remand because Garcia could have applied for gender-based asylum earlier under Aguirre-Cervantes v. INS, 242 F.3d 1169 (9th Cir.2001), vacated, 273 F.3d 1220 (9th Cir.2001). The BIA abused its discretion by relying on Aguirre-Cervantes, a decision that was not final at the time petitioners withdrew Garcia Iniguez’s asylum application and had been vacated by the time of the BIA decision. Because Aguirre-Cervantes did not reflect settled law on the issue of…