
    James Roales MCDULLEY, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
    No. 02-74405.
    United States Court of Appeals, Ninth Circuit.
    Submitted June 15, 2004.
    
    Decided June 24, 2004.
    Leavy, Circuit Judge, filed dissenting opinion.
    J. Jack Artz, Esq., South Pasadena, CA, for Petitioner.
    Regional Counsel, Western Region Immigration & Naturalization Service, Laguna Niguel, CA, District Counsel, Esq., Office of the District Counsel, Department of Homeland Security, Los Angeles, CA, Ronald E. LeFevre, Chief Legal Officer, Office of the District Counsel, Department of Homeland Security, San Francisco, CA, Linda S. Wendtland, Esq., Danielle Franco, U.S. Department of Justice, Civil Div./Offiee of Immigration Lit., Washington, DC, for Respondent.
    Before: LEAVY, THOMAS, and FISHER, Circuit Judges.
    
      
       The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
    
   MEMORANDUM

James Roales McDulley, a native and citizen of the Philippines, petitions for review of a Board of Immigration Appeals’ (“BIA”) denial of his motion to reopen his deportation proceedings. We have jurisdiction under 8 U.S.C. § 1105a(a). See Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997). We review for an abuse of discretion. Watkins v. INS, 63 F.3d 844, 847 (9th Cir.1995). We grant the petition and remand.

McDulley contends that the BIA did not consider evidence that was contained in his motion to reopen indicating that his attorney timely filed a change of address form, EOIR-27, with the BIA. The BIA denied McDulley’s motion to reopen after finding that there was no change of address form contained in the record. The decision of the BIA does not indicate that it considered the change of address form submitted with McDulley’s motion to reopen. See id. at 848M:9 (holding that the BIA must consider all relevant evidence submitted with a motion to reopen). Therefore, we remand for the BIA to consider the form that was tendered by McDulley.

PETITION FOR REVIEW GRANTED; REMANDED.

LEAVY, Circuit Judge,

Dissenting.

I respectfully dissent. I would deny the petition because there is no evidence in the record that the change of address form contained in McDulley’s motion to reopen was ever delivered to the BIA or the Department of Homeland Security before March 4, 2002, the date the BIA mailed notice of its decision to McDulley’s attorney. 
      
       This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
     