Heredia v. Gonzales

MEMORANDUM ^***

Rumualda De La Cruz Heredia, a native and citizen of Mexico, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) summary affirmance without opinion of an immigration judge’s (“U”) denial of her application for cancellation of removal, pursuant to 8 U.S.C. § 1229b(b)(l). We vacate and remand.

The IJ denied cancellation on the grounds that Heredia failed to establish continuous physical presence, good moral character, and the requisite hardship, and the BIA summarily affirmed. We have jurisdiction to review whether an alien has met the continuous physical presence requirement, Falcon Carriche v. Ashcroft, 350 F.3d 845, 853 (9th Cir.2003) and whether an alien is categorically ineligible for a finding of good moral character, Romero-Torres v. Ashcroft, 327 F.3d 887, 890 (9th Cir.2003), but we do not have jurisdiction to review whether an alien has satisfied the hardship requirement, which rests in the discretion of the agency, 8 U.S.C. § 1252(a)(2)(B)(i); Romero-Torres, 327 F.3d at 890-91. Because the BIA affirmed without opinion, we have no way of knowing on which ground or grounds the BIA affirmed, and in turn whether we have jurisdiction to review the BIA’s decision. See Lanza v. Ashcroft, 389 F.3d 917, 919 (9th Cir.2004). Accordingly, we vacate the BIA’s decision and remand with instructions to clarify the grounds for its affirmance of the IJ’s denial of the application for cancellation of removal. See id. at 932.

VACATED and 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.