Garcia-Gahona v. Mukasey
Garcia-Gahona v. Mukasey
Opinion of the Court
SUMMARY ORDER
Edwin Patricio Garcia-Gahona petitions for review of an order of the BIA that (1) affirmed the decision of Immigration Judge (“IJ”) Sandy Horn denying GarciaGahona’s requests to (a) reopen proceedings that led to an in-absentia removal order and (b) rescind that removal order, and (2) declined to remand to the IJ based on new evidence. See In re Garcia-Gahona, No. A73-141-547 (B.I.A. Nov. 28, 2003). We assume the parties’ familiarity with the facts, proceedings below, and specification of issues for review.
At the time the BIA ruled on GarciaGahona’s appeal from the IJ’s denial of
We review for abuse of discretion the BIA’s refusal to remand to the IJ for consideration of Garcia-Gahona’s affidavit. Sanusi v. Gonzales, 445 F.3d 193, 201 (2d Cir. 2006) (per curiam). An abuse of discretion may be found where the BIA’s decision “provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements; that is to say, where the Board has acted in an arbitrary or capricious manner.” Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir. 2001) (internal citations omitted). The BIA may grant a motion to remand based on new evidence only where that evidence “could not have been discovered or presented at the former hearing,” 8 C.F.R. 1003.2(c).
In this case, the BIA denied remand because it found that Garcia-Gahona failed to show that his affidavit was previously unavailable and because Garcia-Gahona failed to act with due diligence. There is evidence in the record that arguably supports this determination. However, there is also significant evidence of the affidavit’s unavailability. Garcia-Gahona was detained at some distance from his student attorneys at the time the reopening motion was filed. In addition, he was subject to immediate removal, which gave his attorneys cause to file immediately without waiting to obtain an affidavit. Further, he actually sent a statement made under penalty of perjury to the immigration judge within two weeks of filing his motion. Under these circumstances, we believe that the BIA should have explained why it did not accept Garcia-Gahona’s proof as sufficient. Today’s vacatur and remand will afford the BIA an opportunity to provide such an explanation or, if it finds that
Therefore, we grant review, vacate the order below, and remand for further proceedings.
Reference
- Full Case Name
- Edwin Patricio GARCIAGAHONA v. Michael B. MUKASEY, United States Attorney General
- Status
- Published