Victoria v. Gonzales

131 F. App'x 587

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 16, 2005
• Docket: No. 04-70925
• Status: Published

Opinion

MEMORANDUM

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Dolores Victoria, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ summary affirmance of an immigration judge’s (“IJ”) denial of her application for cancellation of removal. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for substantial evidence, Vera-Villegas v. INS, 330 F.3d 1222, 1230 (9th Cir.2003), and grant the petition for review.

Although Victoria’s testimony regarding her continuous physical presence potentially conflicted with the testimony of her witness, she was never given an opportunity to clarify. See Guo v. Ashcroft, 361 F.3d 1194, 1200 (9th Cir.2004) (“unclear testimony may not serve as substantial evidence for an adverse credibility finding when an applicant is not given the chance to attempt to clarify his or her testimony.”) (citation omitted). Accordingly, the IJ’s conclusion that Victoria did not meet her burden of proving continuous physical presence is not supported by substantial evidence. See id.

We remand this matter for the Attorney General to determine whether, accepting Victoria’s testimony regarding continuous physical presence as credible, and in light of the IJ’s findings that she established exceptional and extremely unusual hardship and good moral character, Victoria is entitled to a favorable exercise of discretion. See INS v. Ventura, 537 U.S. 12, 16-17, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam).

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.