Garcia-Barreto v. Holder

349 F. App'x 239

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 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 reconsider Garcia-Barreto’s motion to reopen under the correct standard and in light of all the evidence submitted.

PETITION FOR REVIEW GRANTED; REMANDED.

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