Sanchez v. Holder , 382 F. App'x 581 ( 2010 )

FILED
NOT FOR PUBLICATION JUN 07 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
HORACIO ALCARAZ SANCHEZ; No. 06-73744
IMELDA ALCARAZ,
Agency Nos. A079-269-614
Petitioners, A079-269-615
v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 25, 2010 **
Before: CANBY, THOMAS, and W. FLETCHER, Circuit Judges.
Horacio Alcaraz Sanchez and Imelda Alcaraz, husband and wife and 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
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction under 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
deny in part and grant in part the petition for review, and remand for further
proceedings.
The BIA did not abuse its discretion by denying the motion to reopen with
regard to Alcaraz’s diagnosis of hyperthyroidism where the evidence submitted
was insufficient to establish prima facie eligibility for cancellation of removal. See
Singh v. INS, 295 F.3d 1037, 1039 (9th Cir. 2002) (The BIA’s denial of a motion to
reopen shall be reversed only if it is “arbitrary, irrational or contrary to law.”).
The BIA did abuse its discretion by denying the motion with regard to
petitioners’ son’s learning disability. The BIA determined that petitioners failed to
present new evidence of their son’s learning disability. However, the record shows
that at the time of their hearing in May 2005, their son’s Individualized Education
Program dated June 9, 2004, did not indicate a learning disability. See 8 C.F.R.
§ 1003.2(a), (c). Petitioners’ new Individualized Education Program dated May
19, 2006, submitted with the motion, does indicate a learning disability.
We remand to the BIA for reconsideration of petitioners’ motion to reopen
consistent with this disposition.
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Each party shall bear its own costs for this petition for review.
PETITION FOR REVIEW DENIED in part; GRANTED in part;
REMANDED.
3 06-73744