Galicia-Garcia v. Mukasey ( 2007 )

MEMORANDUM ^**

Valentin Galicia-Garcia and his daughter Karla Paola Galicia-Penaloza petition for review of an order of the Board of Immigration Appeals (“BIA”) denying their motion to reconsider its earlier order affirming an immigration judge’s (“IJ”) decision denying his application for cancellation of removal. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review the denial of a motion to reconsider for abuse of discretion, Oh v. Gonzales, 406 F.3d 611, 612 (9th Cir.2005), and we grant the petition for review.

The BIA concluded there was no error in its prior determination that Galicia-Garcia failed to show the requisite physical presence because he had previously signed an agreement to accept voluntary departure, understanding he would return to Mexico rather than appear before an immigration judge. However, the record does not contain the agreement, and GaliciaGarcia testified that immigration officials did not tell him he had the option to either voluntarily depart or appear before an immigration judge. See Ibarrar-Flores v. Gonzales, 439 F.3d 614, 619 (9th Cir.2006) (“[Bjefore it may be found that a presence-breaking voluntary departure occurred, the record must contain some evidence that the alien was informed of and accepted its terms ”) (internal quotations and citation omitted). Because the BIA did not have the benefit of our decision in Ibarra-Flores at the time of its order, we remand the case for the agency to consider Galicia-Garcia’s application for cancellation of removal in a manner consistent with that decision.

PETITION FOR REVIEW GRANTED; REMANDED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.