Sawyers v. Holder, 399 Fed. Appx. 313 (9th Cir. 2010) [2010 BL 243947]
Hugo Florentino Larios, Hugo F. Larios Law, P.L.L.C., Tempe, AZ, for Petitioner.
Chief Counsel Ice, Office of the Chief Counsel, Department of Homeland Security, San Francisco, CA:Kathryn McKinney, Oil, DOJ-U.S. Department of Justice, Washington, DC, for Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A044-852-78.
[*314] Before: BEEZER and GRABER, Circuit Judges, and CARNEY,[fn**] District Judge.
[fn**] The Honorable Cormac J. Carney, United States District Judge for the Central District of California, sitting by designation.
Petitioner Damien Antonio Sawyers petitions for review of the Board of Immigration Appeal's dismissal of his appeal from the immigration judge's denial of his request for cancellation of removal under 8 U.S.C. § 1229b(a)(1). We grant the petition.
Petitioner argues that, pursuant to Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir. 2005), we must impute to him his mother's residency for purposes of cancellation of removal. In its response brief, the government argued that our decision in Cuevas-Gaspar no longer controls. As the government concedes in its Federal Rule of Appellate Procedure 28(j) letter to this court, however, we thereafter rejected those same arguments in Mercado-Zazueta v. Holder, 580 F.3d 1102 (9th Cir. 2009).
Accordingly, we grant the petition and remand on an open record for any further determinations that the BIA deems necessary, including a determination of when imputation should start. See INS v. Orlando Ventura, 537 U.S. 12, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam); Soto-Olarte v. Holder, 555 F.3d 1089 (9th Cir. 2009). The agency must make findings in the first instance regarding the residency of Petitioner's mother and regarding whether Petitioner was a minor residing with her.
Petition GRANTED. Case REMANDED.