Opinion
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Resubmitted Sept. 2, 1999.
On Petition for Review of an Order of the Board of Immigration Appeals.
Before B. FLETCHER, PREGERSON, Circuit Judges, and WEXLER, District Judge.
ORDER
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.
This appeal is hereby resubmitted.
Petitioner Kelly Vega-Zazueta petitions this court to review a decision by the Board of Immigration Appeals (BIA) denying her motion to reopen her application for suspension of deportation under 8 U.S.C. § 1254(a)(1). On July 10, 1997, we ordered the proceedings in this case stayed so the BIA could resolve Vega-Zazueta's separate application for suspension of deportation under the Violence Against Women Act (VAWA), 8 U.S.C. § 1254(a)(3). The BIA has taken no action on that application. In view of that inaction, we now exercise our jurisdiction under 8 U.S.C. § 1105a and grant Vega-Zazueta's petition for review.
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") repealed 8 U.S.C. § 1105a and replaced it with a new judicial review provision codified at 8 U.S.C. § 1252. See IIRIRA § 306(c)(1), Pub.L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996), as amended by Act of Oct. 11, 1996, Pub.L. No. 104-302, 110 Stat. 3656. However, because the new review provision does not apply to petitioners whose deportation proceedings commenced before April 1, 1997, this court continues to have jurisdiction pursuant to 8 U.S .C. § 1105a. See IIRIRA§ 309(c)(1). Moreover, this court has jurisdiction to review the BIA's denial of a motion to reopen. See Arrozal v. INS, 159 F.3d 429, 432 (9th Cir.1998) (denial of a motion to reopen is not per se a "discretionary decision" under IIRIRA § 309(c)(4)(E)).
Vega-Zazueta has resided in the United States for over 17 years and has four United States citizen children. The INS found her deportable in July, 1992, and gave her until September 29, 1992 to file an application for suspension of deportation. A hearing on the matter was set for April 21, 1993. Vega-Zazueta did not file an application within the allotted time. On October 14, 1992, the IJ ordered her deported and canceled the April 21, 1993 hearing. This order was published by mail on October 19, 1992. The next day, counsel for Vega-Zazueta filed a timely notice of appeal to the BIA, followed by a thoroughly documented application for suspension of deportation on November 2, 1992. The BIA construed the appeal as a motion to reopen her case, and denied it. It found that Vega-Zazueta did not "reasonably explain" her failure to submit a timely application, and that this lack of explanation was itself sufficient grounds for denying the motion to reopen.
We review the BIA's denial of a motion to reopen for abuse of discretion. See Arrozal v. INS, 159 F.3d 429, 432 (9th Cir.1998). "The BIA abuses its discretion when it fails to state its reasons and show proper consideration ofall factors when weighing equities and denying relief." Id. (internal quotations omitted) (emphasis in original). Consideration of all factors includes "taking into account the social and humane considerations presented in an applicant's favor and balancing them against the adverse factors that evidence the applicant's undesirability as a permanent resident." Yepes-Prado v. INS, 10 F.3d 1363, 1365-66 (9th Cir.1993).
Here, the BIA's entire analysis of whether Vega-Zazueta adequately explained her failure to submit a timely application for suspension of deportation consisted of one sentence: "The fact that both respondent and her counsel were too busy with other professional or personal matters does not reasonably explain the failure to file for relief from deportation by the deadline." Having so concluded, the BIA denied Vega-Zazueta's motion to reopen. The BIA thus did not consider that Vega-Zazueta filed her suspension of deportation application only days after the IJ ordered her deported, or that her hearing was set for over five months in the future and was not delayed by her late filing. The BIA also took inadequate account of Vega-Zazueta's particular life circumstances, and took no account of her likelihood of prevailing on the merits of her application.
We find that Vega-Zazueta's failure to file a timely application was due in part to the demands of providing medical attention to her four children and to the difficulties caused by her physically abusive husband. Such "social and humane considerations" are relevant to whether her motion to reopen should have been granted. Yepes-Prado, 10 F.3d at 1365. We also find that Vega-Zazueta has established prima facie eligibility for suspension of deportation. She has resided in the United States for over 17 years, she is the primary caregiver for four United States citizen children, and the record discloses no evidence suggesting a lack of good moral character. This prima facie eligibility suggests the relative lack of "adverse factors ... evidenc[ing] the applicant's undesirability as a permanent resident." Id. at 1366.
In order to be eligible for suspension of deportation, Vega-Zazueta must show: (1) continuous physical presence in the United States for seven years; (2) good moral character; and (3) that deportation will result in "extreme hardship" to her or her United States citizen children. See 8 U.S.C. § 1254(a)(1).
Taking all the circumstances of Vega-Zazueta's case into account, we find that it was an abuse of discretion for the BIA to deny her motion to reopen. We therefore reverse the BIA's denial of the motion. We remand to the BIA with instructions to grant the motion and to remand to an IJ for a hearing on the merits of Vega-Zazueta's application for suspension of deportation. At that hearing, the IJ should also consider Vega-Zazueta's separate application for suspension of deportation under 8 U.S.C. § 1254(a)(3).
PETITION GRANTED.