Hamade v. Ashcroft

45 F. App'x 749

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 30, 2002
• Docket: No. 00-70413, 01-70837; INS No. A94-390-771
• Status: Published

Opinion

MEMORANDUM

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Khalil Hamade petitions for review of three Board of Immigration Appeals decisions denying him withholding of removal under 8 U.S.C. § 1231(b)(3)(A) and under the Convention Against Torture,¹ and declining to reopen his case. We have jurisdiction under 8 U.S.C. § 1252, because Hamade was not adjudged removable under 8 U.S.C. § 1227(a)(2)(B)(i) or any provision dependent upon a prior conviction. “[T]he INS’ mere allegation that a crime was committed is insufficient to bar appellate jurisdiction.” Hernandez-Montiel v. INS, 225 F.3d 1084, 1090 (9th Cir.2000).

Having reviewed the record, and in light of the Board’s determination that Hamade complied with all procedural requirements, we hold that the Board abused its discretion in refusing to reopen the case to consider the material evidence he presented. See 8 C.F.R. § 3.2(c)(1); Rodriguez-Lariz v. INS, 282 F.3d 1218, 1222 (9th Cir.2002) (standard of review). We therefore remand with a direction to reopen the case to consider the new evidence. In light of this determination, we need not address the remaining issues on appeal.

PETITION GRANTED and REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

1 . United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as implemented by the Foreign Affairs Reform and Restructuring Act of 1998 section 2242, Pub.L. No. 105-277, 112 Stat. 2681 (1998).