Olmedo v. Ashcroft

109 F. App'x 877

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 21, 2004
• Docket: No. 02-73911; Agency No. A73-925-119
• Status: Published

Opinion

MEMORANDUM

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Albino Araiza Olmedo, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) summary affirmance of an Immigration Judge’s (“IJ”) denial of his application for cancellation of removal. We have jurisdiction pursuant to 8 U.S.C. § 1252, grant the petition for review, and remand for further proceedings.

By referring repeatedly to a requirement of unconscionability, the IJ applied an incorrect standard of “exceptional and extremely unusual hardship.” See In re Monreal-Aguinaga, 23 I. & N. Dec. 56 (BIA 2001) (en banc) (“we do not find that an ‘unconscionable’ standard is an appropriate one to apply in evaluating a respondent’s eligibility for cancellation of removal”). We therefore remand the proceedings, as “[w]e will not adjudicate the case de novo. The BIA must be given the opportunity to evaluate petitioner’s ... claim under the proper legal standard.” Martinez-Sanchez v. INS, 794 F.2d 1396, 1399 (9th Cir.1986); see also Azanor v. Ashcroft, 364 F.3d 1013, 1021 (9th Cir.2004).

PETITION FOR REVIEW GRANTED; REMANDED.

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.