Delgado-muniz v. Holder , 385 F. App'x 726 ( 2010 )

FILED
NOT FOR PUBLICATION JUN 29 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
TOMASA DELGADO-MUNIZ; No. 05-72748
MARCOS TOMAS ROSARIO-
DELGADO, Agency Nos. A075-619-152
A075-666-210
Petitioners,
v. MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petitions for Review of Orders of the
Board of Immigration Appeals
Argued and Submitted May 3, 2010
Pasadena, California
Before: O’SCANNLAIN and TALLMAN, Circuit Judges, and LEFKOW, District
Judge.**
Tomasa Delgado-Muniz (“Delgado”) and her son Marcos Tomas Rosario-
Delgado, natives and citizens of Mexico, petition for review of the Board of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Joan Humphrey Lefkow, United States District Judge
for the Northern District of Illinois, sitting by designation.
Immigration Appeals’ (“BIA”) orders dismissing their appeals from an
immigration judge’s (“IJ”) decisions denying their applications for cancellation of
removal. The facts are known to the parties and need not be repeated here except
to the extent necessary.
Delgado argues that the IJ was biased and that she was denied a fair hearing.
Because she failed to exhaust such due process claims before the BIA, we lack
jurisdiction to review them. See Tall v. Mukasey, 517 F.3d 1115, 1120 (9th Cir.
2008).
The BIA determined that Delgado is ineligible for cancellation of removal
because she lacks a qualifying relative. See 8 U.S.C. § 1292b(b)(1)(D), (2)(A)(i).
This determination is not supported by substantial evidence in this pre-REAL ID
Act case, however, because the IJ improperly discredited her testimony and
evidence without making an express adverse credibility determination or expressly
declaring the challenged Mexican documents to be fraudulent. See Lopez-
Alvarado v. Ashcroft, 381 F.3d 847, 851 (9th Cir. 2004). Delgado’s testimony
must be credited as true. See id. Furthermore, “[t]he IJ’s demand for more
extensive documentary evidence contravenes our established standards for
credibility determinations.” Id. at 855. We therefore grant the petition in part and
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remand for a determination whether Delgado satisfies the other requirements for
cancellation of removal under either 8 U.S.C. § 1292b(b)(1) or (2).
Although we lack jurisdiction over the BIA’s discretionary determination
that Marcos failed to show the requisite exceptional and extremely unusual
hardship to his U.S. citizen daughter, Romero-Torres v. Ashcroft, 327 F.3d 887,
892 (9th Cir. 2003), we note that Delgado may become another qualifying relative
for Marcos if her application is approved on remand. Accordingly, we remand for
further consideration of Marcos’s application for cancellation of removal.
PETITION FOR REVIEW DISMISSED in part; GRANTED in part;
REMANDED.
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