Del Rosario v. Mukasey

295 F. App'x 180

Opinion

MEMORANDUM

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Carlo Virrey Del Rosario, a native and citizen of the Philippines, petitions for review of an order of the Board of Immigration Appeals (“BIA”) summarily affirming an immigration judge’s (“IJ”) decision denying his motion to reopen removal proceedings. We have jurisdiction pursuant to 8 U.S.C. § 1252, and we grant the petition for review and remand.

The IJ abused her discretion by denying the motion on the ground that petitioner did not provide sufficient evidence that his marriage was bona fide, where petitioner’s marriage occurred prior to the commencement of removal proceedings. See Matter of Garcia, 16 I. & N. Dec. 653, 654-57 (BIA 1978) (holding that the BIA shall generally grant a motion to reopen based on a spousal visa petition where a prima facie approvable visa petition and adjustment of status application have been submitted, unless clear ineligibility is apparent in the record).

PETITION FOR REVIEW GRANTED; REMANDED.

This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.