FILED
NOT FOR PUBLICATION DEC 10 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SANDRA TORRES-TORRES, No. 06-72292
Petitioner, Agency No. A075-754-478
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 3, 2012**
San Francisco, California
Before: CUDAHY,*** TROTT, and RAWLINSON, Circuit Judges.
Petitioner Torres-Torres, a thirty-eight year old citizen of Mexico with four
United States citizen children, petitions for review of the Board of Immigration
*
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).
***
The Honorable Richard D. Cudahy, Senior Circuit Judge for the U.S.
Court of Appeals for the Seventh Circuit, sitting by designation.
Appeals’ (BIA) affirmance of an immigration judge’s (IJ) denial of her application
for cancellation of removal. The ground for the IJ’s denial which the BIA affirmed
was his conclusion that because she “lied” to an asylum officer, Torres-Torres
lacked good moral character and was, therefore, statutorily ineligible for
cancellation of removal. 8 U.S.C. § 1101(f)(6).
The record is devoid of any evidence that the disputed misrepresentation
Torres-Torres made to the asylum officer during an interview was “made with the
subjective intent of obtaining immigration benefits.” Kungys v. United States, 485
U.S. 759, 780 (1988). With respect to her testimony before the IJ, he found it to be
credible. We take note of the government’s failure in its response brief either to
refer to Kungys or to respond to Torres-Torres’s argument that the requisite
subjective intent element is missing from the administrative evidentiary record.
However, the IJ also determined that Torres-Torres had failed to establish
the continuous physical presence in the United States required to qualify for
cancellation. Moreover, the IJ took into consideration alleged welfare fraud on her
part in connection with his determination that she failed to establish her good
moral character. The BIA did not mention these matters in its Decision.
Accordingly, the matter is remanded to the BIA to take these matters into account
2
in revisiting the IJ’s Oral Decision in connection with Torres-Torres’s appeal. See
INS v. Orlando Ventura, 537 U.S. 12, 16-17 (2002) (per curiam).
PETITION GRANTED IN PART, REMANDED IN PART FOR FURTHER
PROCEEDINGS.
3