Fuentes-Oseguera v. Ashcroft

92 F. App'x 582

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 6, 2004
• Docket: No. 02-71261
• Status: Published

Opinion

MEMORANDUM

**

Candelario Fuentes-Oseguera, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) affirmance, without opinion, of an immigration judge’s (“IJ”) decision denying his application for cancellation of removal under 8 U.S.C. § 1229b(b). We have jurisdiction under 8 U.S.C. § 1252, and we review the I J’s decision as the final agency determination, see Falcon Carriche v. Ashcroft, 350 F.3d 845, 849 (9th Cir. 2003). We review constitutional claims de novo, Torres-Aguilar v. INS, 246 F.3d 1267, 1271 (9th Cir.2001), and we deny the petition for review in part, and grant it in part.

Fuentes-Oseguera’s due process challenge to the BIA’s summary affirmance of the IJ’s decision is foreclosed by Falcon Carriche. See 350 F.3d at 849-52.

Because the IJ did not determine whether Fuentes-Oseguera demonstrated “exceptional and extremely unusual hardship” to his citizen children were he denied cancellation of removal, we remand to the BIA so that it may exercise its discretion. See 8 U.S.C. § 1229b(b)(l)(D) (requiring analysis of “exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence”).

PETITION FOR REVIEW GRANTED; REMANDED WITH INSTRUCTION.

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.