Juan Tamara v. Loretta E. Lynch ( 2016 )

FILED
NOT FOR PUBLICATION
AUG 10 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN CARLOS TAMARA, No. 13-72345
Petitioner, Agency No. A070-186-346
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 2, 2016**
Pasadena, California
Before: REINHARDT, KOZINSKI, and WARDLAW, Circuit Judges.
Juan Carlos Tamara petitions for review of a Board of Immigration Appeals
(“BIA”) decision finding him ineligible for cancellation of removal. We have
jurisdiction pursuant to 8 U.S.C. § 1252, and we grant the petition and remand this
case to the BIA for further proceedings.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
The BIA erred in concluding that Tamara was ineligible for cancellation of
removal on the mistaken ground that the petty offense exception was inapplicable
because Tamara had two convictions. First, the petty offense exception applies
where, among other factors, the non-citizen applying for cancellation of removal
has been convicted of only one crime involving moral turpitude. See 8 U.S.C.
§ 1182(a)(2)(A)(ii); Castillo-Cruz v. Holder, 581 F.3d 1154, 1161–62 (9th Cir.
2009). The BIA found Tamara ineligible for the petty offense exception solely on
the basis of the two prior convictions; it failed to address whether both of those
convictions were for crimes involving moral turpitude. Second, if the petty offense
exception applies, the stop time rule does not apply. Castillo-Cruz, 581 F.3d at
1162. Because the BIA erred in applying the petty offense exception, it also failed
to adequately analyze the stop time rule.
We review the BIA’s decision only on the grounds the Board itself invoked.
See INS v. Orlando Ventura, 537 U.S. 12, 16–17 (2002); Andia v. Ashcroft, 359
F.3d 1181, 1184 (9th Cir. 2004) (per curiam). Because “the BIA’s decision cannot
be sustained upon its reasoning, we must remand to allow the agency to decide any
issues remaining in the case.” Andia, 359 F.3d at 1184.
PETITION GRANTED; REMANDED.
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