Ortega-Guillen v. Holder

315 F. App'x 619

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 2, 2009
• Docket: No. 06-75656
• Status: Published

Opinion

MEMORANDUM

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Jesus Ortega-Guillen, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s decision denying his application for cancellation of removal. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review the agency’s continuous physical presence determination for substantial evidence. Ibarra-Flores v. Gonzales, 439 F.3d 614, 618 (9th Cir.2006). We grant the petition for review and remand.

Substantial evidence does not support the agency’s determination that Ortega-Guillen did not meet the continuous physical presence requirement where it is unclear whether Ortega-Guillen departed the United States due to an expedited removal order in 1999, and the record contains no such order. Cf. Juarez-Ramos v. Gonzales, 485 F.3d 509, 512 (9th Cir.2007) (an expedited removal order interrupts an alien’s continuous physical presence for cancellation purposes); see also Ibarra-Flores, 439 F.3d at 619 (inconclusive evidence along with absence of voluntary departure form does not amount to substantial evidence of ineligibility for cancellation of removal). Because the nature and terms of Ortega-Guillen’s departure are unclear, we grant the petition for review and remand for further proceedings.

In light of our disposition, we need not reach Ortega-Guillen’s remaining contentions.

PETITION FOR REVIEW GRANTED; REMANDED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.