Lopez v. Gonzales

MEMORANDUM ** Maria Guadalupe Saucedo Lopez petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying her motion to reopen removal proceedings. We have jurisdiction under 8 U.S.C. § 1252 . We review for abuse of discretion the denial of a motion to reopen. Bhasin v. Gonzales, 423 F.3d 977, 983 (9th Cir. 2005). We grant the petition for review and remand for a hearing. The BIA abused its discretion when it concluded that the evidence Lopez submitted with her motion to reopen was previously available and was immaterial. See id. at 984 . First, Lopez’s mother’s declaration states that since the time of the hearing Lopez’s mother’s job and medical benefits were terminated, making Lopez responsible for all of the household expenses. Second, the evidence regarding Lopez’s mother’s sister, Sara Andrade, indicates that some of Andrade’s health problems arose after the time of the hearing and that her ability to assist Lopez’s mother is due not only to health factors but also to financial constraints. Third, the evidence that Lopez will wait for approximately ten years for a visa to become available is new and material in that the IJ weighed hardship on an assumption that a visa would be available to Lopez in eight months or less. Further, when the BIA dismissed Lopez’s direct appeal it stated that the availability of this visa was material to the hardship finding. We therefore grant the petition for review and remand for a hearing. See id. at 983 (“the Board must show proper consideration of all factors, both favorable and unfavorable, in determining whether to grant a motion to reopen”). PETITION FOR REVIEW GRANTED; REMANDED. This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.