Tizoc v. Gonzales

MEMORANDUM ^**

Gilberta Alvarado Tízoc, a native and citizen of Mexico, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) decision summarily affirming an immigration judge’s (“IJ”) order denying Tizoc’s application for cancellation of removal. We have jurisdiction under 8 U.S.C. § 1252. We review de novo the Id’s determination of purely legal questions. Kankamalage v. INS, 335 F.3d 858, 861 (9th Cir.2003). We grant the petition for review and remand for further proceedings.

The IJ denied Tizoc’s application for cancellation of removal solely on the basis that Tizoe’s period of continuous physical presence was severed when she detained at the border and released after she left the United States for approximately 15 days to visit her father who was ill. Because Tizoc’s brief detention and release at the border did not sever her period of continuous physical presence, see Tapia v. Gonzales, 430 F.3d 997, 1002-03 (9th Cir.2005), we grant the petition for review and remand to the BIA to remand to the IJ for further proceedings. On remand the IJ shall consider the merits of Tizoc’s cancellation of removal claim, including whether she has established the requisite period of continuous physical presence. See INS v. Ventura, 537 U.S. 12, 16-18, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002).

PETITION FOR REVIEW GRANTED; 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.