Noyola Rodriguez v. Gonzales , 168 F. App'x 233 ( 2006 )

MEMORANDUM^**

Filogonia Rosa Elia Noyola Rodriguez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) decision dismissing her appeal from an immigration judge’s (“IJ”) order pretermitting her application for cancellation of removal on the ground that she was statutorily precluded from demonstrating good moral character. We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence, Ramos v. INS, 246 F.3d 1264, 1266 (9th Cir.2001), and we grant the petition for review and remand for further proceedings.

Although substantial evidence supports the agency’s determination that petitioner gave false testimony regarding an arrest in 1988, the government failed to meet its burden of offering “clear, unequivocal, and convincing evidence which does not leave the issue in doubt” that petitioner made this misrepresentation with the “subjective intent of obtaining immigration benefits.” Kungys v. United States, 485 U.S. 759, 780, 781, 108 S.Ct. 1537, 99 L.Ed.2d 839 (1988) (internal quotations omitted). While the BIA stated that it agreed with the IJ’s conclusion, the IJ did not make a finding regarding petitioner’s subjective intent to obtain an immigration benefit. We therefore grant the petition for review and, in accordance with INS v. Ventura, 537 U.S. 12, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam), remand so that the agency may consider petitioner’s application for cancellation of removal or voluntary departure in the alternative.

Because we grant the petition for the reasons stated above, we do not consider petitioner’s due process contentions.

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 9th Cir. R. 36-3.