                                                                           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                              NOT FOR PUBLICATION                           JUN 07 2010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.




                                            2                                      06-73744
    Each party shall bear its own costs for this petition for review.

   PETITION FOR REVIEW DENIED in part; GRANTED in part;
REMANDED.




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