Jonas Farin Noguera v. Eric Holder, Jr. , 545 F. App'x 643 ( 2013 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT NOV 19 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JONAS FARIN NOGUERA, No. 09-73974
Petitioner, Agency No. A072-677-018
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 5, 2013
San Francisco, California
Before: REINHARDT and WATFORD, Circuit Judges, and LASNIK, District
Judge.**
Petitioner Jonas Farin Noguera, a native and citizen of Mexico, petitions for
review of the final order of the Board of Immigration Appeals (BIA) denying his
application for cancellation of removal. The IJ denied Noguera’s application on
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Robert S. Lasnik, District Judge for the U.S. District
Court for the Western District of Washington, sitting by designation.
the basis that he filed a frivolous application for asylum under 8 U.S.C. §
1158(d)(6), but the BIA reversed the Immigration Judge’s (IJ) determination on
appeal. Instead, the BIA determined that Noguera was ineligible for cancellation
of removal because he provided false testimony under oath, 8 U.S.C. § 1101(f)(6),
and, as a result, could not demonstrate the good moral character necessary to
obtaining cancellation of removal.
Whether an individual is “under oath” for the purposes of section 1101(f)(6)
is a question of fact. See In re R-S-J-, 22 I. & N. Dec. 863, 871 (BIA 1999)
(remanding to IJ for determination whether individual was under oath). In order to
be “under oath,” an individual must understand the meaning and effect of being
“under oath.” United States v. Bueno-Vargas, 383 F.3d 1104, 1111 (9th Cir.
2004). Despite Noguera’s protests that he did not understand the meaning or effect
of the oath, the IJ failed to find whether or not Noguera met that requirement.
The BIA’s conclusion that Noguera could not demonstrate good moral
character was based on its assumption that he was “under oath.” The conclusion
must, however, be based on a factual finding. The BIA does not have the authority
to find such facts in the first instance. 8 C.F.R. § 1003.1(d)(3)(iv). Such a finding
must be made by the IJ, and none was made here. Accordingly, we remand to the
BIA with instructions to remand to the IJ to determine in the first instance whether
Noguera understood the meaning and effect of the oath. See INS v. Orlando
Ventura, 537 U.S. 12, 16–18 (2002) (per curiam).
PETITION FOR REVIEW GRANTED.