Lopez v. Holder

FILED
NOT FOR PUBLICATION DEC 16 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARTHA LILIA LOPEZ, No. 07-70138
Petitioner, Agency Nos. A078-112-627
A095-234-349
v.
ERIC H. HOLDER Jr., Attorney General, MEMORANDUM *
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 1, 2009**
San Francisco, California
Before: HUG, SKOPIL and BEEZER, Circuit Judges.
Martha Lilia Lopez petitions for review of the Board of Immigration
Appeals’s (“BIA”) decision determining that she is ineligible for cancellation of
removal. We review the BIA’s factual determinations, “including the
determination of continuous presence,” for substantial evidence. Ibarra-Flores v.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
Gonzales, 439 F.3d 614, 618 (9th Cir. 2006). We have jurisdiction pursuant to 8
U.S.C. § 1252(a)(1). We grant the petition for review.
The facts of this case are known to the parties. We do not repeat them.
The BIA’s finding that the cancellation of Lopez’s border crossing card
broke her continuous presence in the United States is not supported by substantial
evidence. An alien’s continuous presence is not broken when she is refused
admission into the country by immigration officials. Tapia v. Gonzales, 430 F.3d
997, 1002 (9th Cir. 2005). Instead, “the record must contain some evidence that
the alien was informed of and accepted [the] terms” of a departure agreement.
Ibarra, 439 F.3d at 619 (quoting Reyes-Vasquez v. Ashcroft, 395 F.3d 903, 908
(8th Cir.2005)). Here, the only evidence is Lopez’s passport, in which an
immigration officer wrote “22 C.F.R. § 41.122(h)(3),” and Lopez’s testimony that
she signed, without reading, an unidentified document when her border crossing
card was canceled and she was denied entry. This evidence is not sufficient to lead
a reasonable mind to conclude that Lopez was informed of and accepted the terms
of a voluntary departure (or like) agreement.
PETITION GRANTED and REMANDED.
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