Vistan v. Gonzales

123 F. App'x 304

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 22, 2005
• Docket: Nos. 03-74114
• Status: Published

Opinion

MEMORANDUM

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Pedro Vistan, Jr., together with his wife and three children, natives and citizens of the Philippines, petition for review of the Board of Immigration Appeals’ summary affirmance of an immigration judge’s (“IJ”) denial of their motion to reopen removal proceedings conducted in absentia. We have jurisdiction under 8 U.S.C. § 1252. We review for an abuse of discretion the denial of a motion to reopen removal proceedings. Celis-Castellano v. Ashcroft, 298 F.3d 888, 890 (9th Cir.2002). We grant the petition and remand for further proceedings.

The IJ improperly denied the Petitioners’ motion to reopen for lack of evidence because they submitted a death certificate and several signed letters to support their claims. See Singh v. INS, 213 F.3d 1050, 1053 (9th Cir.2000) (indicating that a motion to reopen shall be supported by affidavits or other evidentiary material) (emphasis added); see also 8 C.F.R. § 1003.2(c)(1). The Petitioners’ failure to produce medical records was not fatal to their motion to reopen because their letters indicated that Vistan did not seek medical treatment for his health condition. See, e.g., id. at 1053-54 (9th Cir.2000) (holding that it is not proper to deny a motion to reopen immigration proceedings conducted in absentia for lack of medical records where the evidence submitted established that medical treatment was not sought or rendered). Accordingly, we remand so that the IJ can determine whether the death of Vistan’s brother or Vistan’s resulting health condition constitute an “exceptional circumstance” excusing the Petitioners’ failure to appear.

All pending motions are denied as moot.

PETITION FOR REVIEW GRANTED; REMANDED.

xhiS 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.