U.S. Court of Appeals for the Ninth Circuit, 2006

Sandoval Becerra v. Gonzales

Sandoval Becerra v. Gonzales
U.S. Court of Appeals for the Ninth Circuit · Decided April 12, 2006
176 F. App'x 793

Sandoval Becerra v. Gonzales

Opinion of the Court

MEMORANDUM **

Rosa Sandoval Becerra, and her husband, Augustin Jaime Martinez Prieto, natives and citizens of Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”) order denying their motion to reopen removal proceedings. We have *794jurisdiction pursuant to 8 U.S.C. § 1252. Reviewing for abuse of discretion, Bhasin v. Gonzales, 423 F.3d 977, 983 (9th Cir. 2005), we grant the petition for review.

The evidence Petitioners submitted with their motion to reopen indicates that their son’s medical condition was not diagnosed until after the IJ had denied Petitioners’ applications for cancellation of removal. Accordingly, the BIA abused its discretion in concluding that Petitioners failed to demonstrate that the evidence they presented with their motion was unavailable at their former hearing. See 8 C.F.R. § 1003.2(c)(1); see also Bhasin, 423 F.3d at 987 (noting that where the evidence became available during the pendancy of an appeal it was not “previously available” for purposes of a motion to reopen).

We remand this case so that the agency may consider whether, in light of the new evidence presented, Petitioners have established eligibility for cancellation of removal.

Because we grant the petition for the reasons stated above, we do not consider Petitioners’ due process contentions.

PETITION FOR REVIEW GRANTED; 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 9th Cir. R. 36-3.

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