Calisay

MEMORANDUM **

Rosario Gadista Calisay, a native and citizen of the Philippines, petitions for review of the Board of Immigration Appeals’ *933 (“BIA”) order dismissing her appeal from an immigration judge’s (“IJ”) decision finding her removable and ineligible for relief. We have jurisdiction under 8 U.S.C. § 1252 . Reviewing for abuse of discretion, Guzman v. INS, 318 F.3d 911 , 912 n. 1 (9th Cir.2003) (per curiam), we grant the petition for review and remand.

The BIA erred by not construing Cali-say’s new evidence concerning adjustment of status as a motion to remand. See, e.g., Iturribarria v. INS, 321 F.3d 889, 895-97 (9th Cir.2003) (holding the BIA improperly construed a motion as one for reconsideration where it presented new evidence). Although no remand motion was made, the issue was clearly considered by the BIA. The BIA misapplied Matter of Velarde-Pacheco, 23 I. & N. Dec. 253 (BIA 2002), because the government opposed remand solely on the basis that a visa had not been adjudicated. See id. at 256 (motion to reopen for adjustment of status may be granted while 1-130 visa petition is pending where, inter alia, the government opposes the motion solely on the basis that a…