                                                                           FILED
                                                                            NOV 24 2009

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS

                            FOR THE NINTH CIRCUIT




JESUS SALVADOR ALEJO CEJA; et al.,               No. 05-76475

             Petitioners,                        Agency Nos. A096-495-048
                                                            A072-404-107
  v.

ERIC H. HOLDER Jr., Attorney General,            MEMORANDUM *

             Respondent.



JESUS SALVADOR ALEJO CEJA; et al.,               No. 06-71150

             Petitioners,                        Agency Nos. A096-495-048
                                                            A072-404-107
  v.

ERIC H. HOLDER Jr., Attorney General,

             Respondent.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
JESUS SALVADOR ALEJO CEJA; et al.,               No. 06-72543

              Petitioners,                       Agency Nos. A096-495-048
                                                            A072-404-107
  v.

ERIC H. HOLDER Jr., Attorney General,

              Respondent.




                      On Petition for Review of an Order of the
                          Board of Immigration Appeals

                         Argued and Submitted July 8, 2008
                         Submission vacated July 16, 2008
                          Resubmitted November 23, 2009
                                 Portland, Oregon

Before: GOODWIN, PREGERSON and REINHARDT, Circuit Judges.




       Jesus Alejo-Ceja and Leticia Avila-Flores (the Alejos), natives and citizens

of Mexico, petition for review of the BIA’s denial of their motion to reopen

removal proceedings and its subsequent denial of their motion to reconsider that

decision. We have jurisdiction to review the BIA’s denial of the Alejos’ motion to

reopen, which offered evidence of a newly discovered serious medical condition

afflicting their older U.S. citizen daughter, Maira. Fernandez v. Gonzales, 439


                                          2
F.3d 592, 601-02 (2006) (holding that this court has jurisdiction to review the

BIA’s denial of a motion to reopen when the newly submitted evidence establishes

a new basis for relief, such as a newly discovered medical condition affecting a

qualifying relative). We review the BIA’s denial of motions to reopen and motions

to reconsider for abuse of discretion, including for legal errors. Oh v. Gonzales,

406 F.3d 611, 612 (9th Cir. 2005); Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.

2003). We conclude that the BIA abused its discretion when it denied the Alejos’

motion to reopen because it failed to properly consider the evidence of Maira’s

newly discovered mental health problem. Therefore, we grant the petition 1 and

remand for further proceedings.

      At the time of their immigration hearing, the Alejos testified that although

their younger daughter, Carina, had mental health problems, their older daughter,

Maira, a 10-year-old, was in good health. In support of their motion to reopen, the

Alejos submitted newly discovered evidence, in the form of an affidavit from


      1
        Because we conclude that the BIA made a legal error in denying the motion
to reopen, we do not rule on the petition for review of the motion to reconsider.
Thus, we do not reach the question whether the BIA violated the Alejos’ Due
Process rights when it refused to await the results of their daughters’ forthcoming
psychiatric evaluations before ruling on the motion to reopen. However, we note
that those evaluations are now part of the record, having been submitted by the
Alejos in conjunction with their motion to reconsider, and that the BIA is free to
take notice of them on remand when considering the Alejos’ motion to reopen. See
8 C.F.R. § 1003.2.

                                          3
petitioner Leticia Avila-Flores, Maira’s mother, that since the hearing Maira had

developed an anxiety disorder, and, in the motion, the Alejos informed the BIA

that Maira had an appointment for a full psychiatric examination shortly. The

Alejos also submitted background information about anxiety disorders, which

demonstrated that the disorders “can be very debilitating and impinge seriously

upon a person’s quality of life” and are strongly associated with depression and

suicide. The BIA discounted the “allegations” that Maira had developed an

anxiety disorder because they were “not supported by any medical evidence.” This

was error because, in ruling on a motion to reopen, “[the Board] must accept as

true the facts stated in [petitioners’] affidavits unless they are inherently

unbelievable,” Limsico v. INS, 951 F.2d 210, 213 (9th Cir. 1991), and because

there is no requirement in statute, regulation, or BIA case law that an affidavit

describing the illness of a qualifying relative be supported by medical evidence.

Cf. Singh v. INS, 213 F.3d 1050, 1053 (9th Cir. 2000) (holding that the BIA

violated Due Process by denying Singh’s motion to reopen on the ground that he




                                            4
provided no medical evidence of the injury that kept him from his immigration

hearing because he had no notice that medical evidence was required).2

      After stating that Maira’s anxiety condition was not documented by medical

evidence, the BIA went on to consider information relating to other qualifying

relatives submitted by the Alejos in support of their motion to reopen. The BIA

ultimately concluded that “respondents have failed to show how this ‘cumulative’

evidence is either ‘new’ or would alter the Immigration Judge’s conclusion that . . .

this does not rise to the level of ‘exceptional and extremely unusual hardship.’”

      We do not have jurisdiction to review the BIA’s discretionary determination

of whether petitioners met the exceptional and extremely unusual hardship

standard. Fernandez, 439 F.3d at 603. It appears, however, that the BIA made that


      2
         Although our statement in Singh that the BIA’s decision had announced a
new evidentiary standard, Singh, 213 F.3d at 1054, suggests that medical evidence
would henceforth be required, we also stated that no such requirement existed even
after the BIA’s decision in that case. Id. at 1053 & n.3. We pointed out that the
BIA had announced a conflicting evidentiary standard on the same day that it
decided Singh, and was contemporaneously applying yet a third evidentiary
standard. Id. at 1053-54 & n.4, 7. A review of BIA case law suggests that it has
yet to make a definitive choice between these conflicting standards.
       In any event, the Alejos’ motion to reopen pertains to removal proceedings
at which they were present, and is therefore governed by a different regulation and
a different evidentiary standard than the motion to reopen in absentia proceedings
that was at issue in Singh. Compare 8 C.F.R. § 1003.23(b)(4) (motion to reopen
must offer evidence that failure to appear was due to “exceptional circumstances”)
with 8 C.F.R. § 1003.2(c) (motion to reopen must offer evidence that is “new” and
“material”).

                                          5
determination based upon a legal error, which we do have jurisdiction to review.

As explained above, the BIA’s legal conclusion that the statements in the affidavit

regarding Maira’s anxiety condition need not be accepted as true because they

were not supported by medical evidence was erroneous. The BIA was required to

accept the evidence as true when it determined whether the Alejos’ newly

discovered evidence would alter the IJ’s discretionary determination. Limsico, 951

F.2d at 213. It did not do so. Therefore, we GRANT the petition and REMAND

for further proceedings not inconsistent with this opinion, including footnote 1,

supra.




         GRANTED and REMANDED




                                          6
