Emiliano Hernandez Hernandez v. William Barr

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 11 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EMILIANO HERNANDEZ HERNANDEZ, No. 16-70141
AKA Emiliano Hernandez,
Agency No. A206-412-057
Petitioner,
v. MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 14, 2019**
Pasadena, California
Before: LIPEZ,*** WARDLAW, and HURWITZ, Circuit Judges.
Emiliano Hernandez Hernandez, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (BIA) decision affirming the
*
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 Honorable Kermit V. Lipez, United States Circuit Judge for the
First Circuit, sitting by designation.
Immigration Judge’s (IJ) denial of Hernandez’s application for non-lawful
permanent resident cancellation of removal, based on the finding that Hernandez
did not meet his burden of proving ten years of continuous presence in the United
States. We have jurisdiction pursuant to 8 U.S.C. § 1252. We grant the petition
for review and remand the case to the BIA.
1. Lorenzo Lopez v. Barr, -- F.3d ---, 2019 WL 2202952 (9th Cir. May
22, 2019), decided after this case was submitted, held that a defective Notice to
Appear omitting the time and place of the hearing cannot be cured by a subsequent
Notice of Hearing. Under Lopez, Hernandez has shown ten years of continuous
presence, contrary to the BIA’s ruling. Because Hernandez’s Notice to Appear
omitted the time and place of his initial hearing, it did not terminate Hernandez’s
period of continuous physical presence under 8 U.S.C. § 1229b(d)(1). The parties
do not dispute that Hernandez entered the United States in 2006 at the latest.
Because the defective Notice to Appear, issued on January 19, 2015, did not
terminate his qualifying period of residency, Hernandez’s continued residency in
the United States beyond 2016 establishes ten years of continuous presence.
2. The issue of hardship to a qualifying relative—including whether the
BIA erred in excluding probative relevant evidence—is not properly before us.
The BIA explicitly declined to reach this issue because it upheld the IJ’s denial of
the application for cancellation of removal for failure to demonstrate ten years of
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continuous presence. See Shrestha v. Holder, 590 F.3d 1034, 1039 (9th Cir. 2010)
(“When the BIA conducts its own review of the evidence and law rather than
adopting the IJ’s decision, our review is limited to the BIA’s decision, except to
the extent that the IJ’s opinion is expressly adopted.” (internal quotation marks
omitted)). We remand to the BIA for a determination of Hernandez’s eligibility
for cancellation of removal in line with this disposition.
PETITION GRANTED; REMANDED.
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