Tubalado v. Mukasey

289 F. App'x 192

Opinions

MEMORANDUM

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Joshua Tubalado petitions for review of the Board of Immigration Appeals’s (“BIA”) order affirming the Immigration Judge’s (“IJ”) decision denying his application for cancellation of removal. We have jurisdiction under 8 U.S.C. § 1252, and we grant the petition.

Tubalado contends that his father’s lawful admission can be imputed to him, and that this additional time allows him to satisfy the seven-year continuous residence requirement. See 8 U.S.C. § 1229b(a)(2). The IJ and BIA did not have the advantage of Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir.2005), when they decided Tubalado’s case. At oral argument, Tubalado’s counsel suggested Tubalado’s father had resided continuously in the United States for seven years prior to his service in Japan. Under these circumstances, we believe these proceedings should be remanded to the BIA to consider Tubalado’s case anew in light of the teachings of Cuevas-Gaspar. The BIA should consider whether the reasoning of Cuevas-Gaspar extends to a situation where the alien did not reside in the United States with his parent during the applicable time period, and whether the reasoning of Cuevas-Gaspar does or does not affect the BIA’s hesitance to impute 8 U.S.C. § 1229b(d)(3).

PETITION GRANTED; REMANDED.

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