Mayra Cruz-Carballo v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION JAN 12 2011

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

MAYRA ROXANA CRUZ-CARBALLO, No. 09-72199

Petitioner, Agency No. A074-426-129

v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted December 14, 2010 **

Before: GOODWIN, WALLACE, and THOMAS, Circuit Judges.

Mayra Roxana Cruz-Carballo, a native and citizen of El Salvador, petitions

pro se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing

her appeal from an immigration judge’s removal order. We have jurisdiction under

*
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).
8 U.S.C. § 1252. We review de novo questions of law, Khan v. Holder, 584 F.3d

773, 776 (9th Cir. 2009), and we grant the petition for review.

The BIA failed to address Cruz-Carballo’s contention that she is eligible for

special rule cancellation of removal under 8 C.F.R. § 1240.66(c), which

implements the provision of the Nicaraguan Adjustment and Central American

Relief Act of 1997 (“NACARA”) authorizing relief for otherwise eligible aliens

who are removable due to certain criminal convictions. See NACARA § 203(b).

Although both parties discuss Cruz-Carballo’s eligibility for this relief in their

briefing, because “this court cannot affirm the BIA on a ground upon which it did

not rely,” Navas v. INS, 217 F.3d 646, 658 n.16 (9th Cir. 2000), we grant the

petition for review and remand the case to the BIA to address Cruz-Carballo’s

eligibility in the first instance. See INS v. Ventura, 537 U.S. 12, 16 (2002) (per

curiam).

PETITION FOR REVIEW GRANTED; REMANDED.

2 09-72199