Sawyers, et al v. Mukasey, No. 08-70181 (9th Cir. 2010)

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The court issued a subsequent related opinion or order on June 29, 2012.

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS OCT 14 2010 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT DAMIEN ANTONIO SAWYERS, etc. Petitioner, No. 08-70181 Agency No. A044-852-478 v. MEMORANDUM * ERIC H. HOLDER JR., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted October 8, 2010 ** San Francisco, California Before: BEEZER and GRABER, Circuit Judges, and CARNEY,*** District Judge. Petitioner Damien Antonio Sawyers petitions for review of the Board of Immigration Appeal s dismissal of his appeal from the immigration judge s denial * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. Fed. R. App. P. 34(a)(2). *** The Honorable Cormac J. Carney, United States District Judge for the Central District of California, sitting by designation. of his request for cancellation of removal under 8 U.S.C. § 1229b(a)(1). We grant the petition. Petitioner argues that, pursuant to Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir. 2005), we must impute to him his mother s residency for purposes of cancellation of removal. In its response brief, the government argued that our decision in Cuevas-Gaspar no longer controls. As the government concedes in its Federal Rule of Appellate Procedure 28(j) letter to this court, however, we thereafter rejected those same arguments in Mercado-Zazueta v. Holder, 580 F.3d 1102 (9th Cir. 2009). Accordingly, we grant the petition and remand on an open record for any further determinations that the BIA deems necessary, including a determination of when imputation should start. See INS v. Orlando Ventura, 537 U.S. 12 (2002) (per curiam); Soto-Olarte v. Holder, 555 F.3d 1089 (9th Cir. 2009). The agency must make findings in the first instance regarding the residency of Petitioner s mother and regarding whether Petitioner was a minor residing with her. Petition GRANTED. Case REMANDED. 2

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