Orellana De Zelaya v. Alberto Gonzales , 206 F. App'x 612 ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-1767
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Claudia Marisol Orellana De Zelaya, *
*
Petitioner, *
* Petition for Review
v. * of an Order of the
* Board of Immigration Appeals.
Alberto Gonzales, United States *
Attorney General, * [UNPUBLISHED]
*
Respondent. *
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Submitted: September 13, 2006
Filed: November 7, 2006
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Before SMITH, MAGILL, and BENTON, Circuit Judges.
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PER CURIAM.
Claudia Marisol Orellana De Zelaya (De Zelaya), a citizen of El Salvador,
petitions for review of an order of the Board of Immigration Appeals (BIA) which
summarily affirmed an Immigration Judge’s (IJ’s) denial of relief from deportation.1
1
The IJ’s decision constitutes the final agency determination for purposes of
judicial review, see Kimumwe v. Gonzales, 431 F.3d 319, 322 (8th Cir. 2005); and we
lack jurisdiction to consider De Zelaya’s arguments that her case was not proper for
an affirmance without opinion, see Ngure v. Ashcroft, 367 F.3d 975, 981-88 (8th Cir.
2004).
In March 1994 the former Immigration and Naturalization Service (INS)
charged De Zelaya with being deportable for entering the United States without
inspection. De Zelaya conceded deportability and after a political-asylum hearing, she
was ordered deported to El Salvador.
In July 1998 De Zelaya moved to reopen to apply for “suspension of
deportation/special cancellation of removal” under section 203 of the Nicaraguan
Adjustment and Central American Relief Act (NACARA). The IJ granted the motion
and, following a merits hearing in February 2003, denied the application. The IJ
analyzed De Zelaya’s case applying the NACARA suspension-of-deportation
requirements, see 8 C.F.R. § 240.65 (2005) (NACARA suspension-of-deportation
regulation), and concluded that De Zelaya did not satisfy section 240.65’s good-
moral-character requirement because she had testified falsely at the 2003 hearing
regarding her date of entry into the United States. De Zelaya and the government
agree that she applied for NACARA special-rule cancellation of removal derivatively
through her husband--who had applied for and received NACARA special-rule
cancellation of removal--and that the IJ should have applied the requirements listed
at 8 C.F.R. § 240.66 (2005) (NACARA cancellation-of-removal regulation). The IJ
did not discuss why he applied section 240.65 instead of section 240.66.
Although NACARA suspension of deportation and NACARA special-rule
cancellation of removal both provide the same benefit to the alien applicant, that is,
adjustment of status to that of a lawful permanent resident, there are differences in the
requirements for establishing eligibility for these two forms of relief, including the
relevant period for which good moral character must be established. See Cuadra v.
Gonzales, 417 F.3d 947, 950-52 (8th Cir. 2005) (noting difference between § 240.65
“was and is” requirement and § 240.66 “has been” requirement; finding § 240.66
requires alien to demonstrate good moral character during 7-year period before filing
of application and does not require alien to demonstrate good moral character after
that period).
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Accordingly, we grant the petition and remand this case to the BIA with
instructions to remand to the IJ to conduct a further analysis of De Zelaya’s
application for NACARA special-rule cancellation of removal.
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