ARMANDO GRIJALVA CUEN V. LORETTA E. LYNCH, No. 13-70970 (9th Cir. 2015)
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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS JUL 27 2015 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ARMANDO GRIJALVA CUEN, AKA Armando Cuen Grijalva, No. 13-70970 Agency No. A013-676-269 Petitioner, MEMORANDUM* v. LORETTA E. LYNCH, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted July 21, 2015** Before: CANBY, BEA, and MURGUIA, Circuit Judges. Armando Grijalva Cuen, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his applications for cancellation of removal for certain lawful permanent residents and voluntary departure as a matter * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). of discretion. We have jurisdiction under 8 U.S.C. § 1252. We review de novo questions of law and constitutional claims. Coronado v. Holder, 759 F.3d 977, 982 (9th Cir. 2014). We grant the petition for review and remand. Before the BIA, Grijalva Cuen contended that, in determining that Grijalva Cuen did not warrant a favorable exercise of discretion, the IJ erred in considering alleged arrests and convictions for which there was no evidence in the record. The BIA did not address this contention nor clarify whether it considered such incidents in affirming the IJ’s decision. We therefore remand for the BIA to clarify whether it considered as a negative factor in its discretionary analysis alleged arrests and convictions for which there was no evidence in the record and, if so, address Grijalva Cuen’s contention that doing so was error. See She v. Holder, 629 F.3d 958, 963-64 (9th Cir. 2010) (remanding where “we lack the clairvoyance necessary to confidently infer the reasoning behind the BIA’s conclusion”); Hernandez v. Ashcroft, 345 F.3d 824, 849 (9th Cir. 2003) (reviewing whether the BIA considered an impermissible factor in making a discretionary determination). PETITION FOR REVIEW GRANTED; REMANDED. 2 13-70970
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