FILED
NOT FOR PUBLICATION
DEC 04 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALEJANDRO CAMARILLO-ORTEGA, No. 10-71560
AKA Alex Sanchez,
Agency No. A099-724-906
Petitioner,
v. MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 16, 2015**
San Francisco, California
Before: KLEINFELD, WARDLAW, and PAEZ, Circuit Judges.
Alejandro Camarillo-Ortega (“Ortega”) petitions for review of the Board of
Immigration Appeals’ (“BIA”) decision affirming the Immigration Judge’s (“IJ’s”)
*
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).
denial of his application for cancellation of removal and his request for voluntary
departure. We grant the petition.
1. Ortega applied for cancellation of removal, naming his stepfather, Gregorio
Martinez-Sanchez (“Sanchez”) as his “qualifying relative.” INA § 250A(b). To
establish eligibility for such relief, Ortega had to demonstrate that a “family
relationship [] continued to exist” between himself and Sanchez, as Sanchez was
no longer married to Oretga’s mother. See In re Mowrer, 17 I. & N. Dec. 613, 615
(B.I.A. 1981). To make this showing, Ortega testified that he had lived with
Sanchez, rather than his mother, ever since their divorce. Sanchez, who testified at
the hearing, corroborated Ortega’s account. Ortega’s application for cancellation
of removal, however, listed his mother’s address as his place of residence.
2. The IJ rejected Ortega’s explanation for the discrepancies in the addresses
between his testimony and written application. The IJ noted Sanchez’s
corroborating testimony, but gave it less weight than that of an “objective” or
“disinterested party” and ultimately determined it did not overcome the
inconsistencies between Ortega’s testimony and his application. Based on these
inconsistencies, the IJ found Ortega not credible, and proceeded to find that
Sanchez not was a “qualifying relative.” The IJ denied Ortega’s application for
cancellation of removal and his request for voluntary departure.
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3. The BIA affirmed the IJ’s adverse credibility finding and denial of relief.
The BIA agreed that the discrepancies between Ortega’s testimony and the record
were problematic, and that Sanchez’s testimony could not overcome those
discrepancies. The BIA, however, did not adopt the IJ’s determination that
Sanchez was not a credible witness because he was an interested party. Instead,
the BIA found that he was an unreliable witness because he was “unable to recall
basic information, including the respondent’s name, the respondent’s mother’s
name, and the year he married the respondent’s mother.”1
4. The BIA’s conclusions regarding Sanchez’s testimony constituted
impermissible fact finding because the IJ made no factual findings about Sanchez’s
ability to recall information. See Rodriguez v. Holder, 683 F.3d 1164, 1170 (9th
Cir. 2012). In affirming the IJ’s adverse credibility finding as to Ortega, the BIA
relied in part on its own factual findings about Sanchez. This was reversible error.
See id.
5. In addition to engaging in impermissible fact finding, the BIA erred in
failing to review properly the IJ’s adverse credibility determination. We have held
that “inconsistencies must be viewed in light of all the evidence presented in the
1
Sanchez suffered a stroke in 1998, which affected his ability to testify
during the hearing.
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case.” Kaur v. Gonzales, 418 F.3d 1061, 1066 (9th Cir. 2005). The agency failed
to abide by that rule in this case. Neither the BIA nor the IJ addressed the
numerous pieces of evidence that bolstered Ortega’s testimony that he lived with
Sanchez. For example, the IJ did not discuss Ortega’s lack of relationship with his
current stepfather, which tends to support Ortega’s assertion that he lives with
Sanchez. Nor did the IJ’s decision take into account the corroborating testimony
of Sanchez’s doctor and nurse practitioner. Notably, the nurse practitioner testified
that he “believe[d Sanchez] lives with Alejandro.” Finally, the IJ did not take into
account Sanchez’s poor health as itself supporting Ortega’s claim of a continuing
relationship. Because the IJ’s failure to consider the record as a whole was clearly
erroneous as a matter of law, the BIA must reconsider its decision.
For the above reasons, Ortega’s petition for review is GRANTED.
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