Narrative Opinion Summary
The case involves a petition for review by a Mexican national challenging the Board of Immigration Appeals' decision, which affirmed an immigration judge's denial of his application for suspension of deportation. The United States Court of Appeals holds jurisdiction under 8 U.S.C. § 1252. The petitioner contended that the IJ incorrectly evaluated his continuous physical presence in the United States. The court grants the petition, finding that the petitioner sufficiently raised the issue in his pro se Notice of Appeal, thus exhausting his administrative remedies. Without an adverse credibility finding, the court accepts the petitioner's testimony as credible. The court observes that the IJ failed to consider the petitioner's application and supporting evidence, which claimed over seven years of continuous presence, concluding that substantial evidence does not support the IJ's decision. The court also notes that the government's argument regarding a ten-year requirement under former 8 U.S.C. § 1254(a)(2) was not initially addressed by the agency. Consequently, the court remands the case for further proceedings to reassess the petitioner's continuous physical presence. The decision is not designated for publication, limiting its citation in the circuit per Ninth Circuit Rule 36-3.
Legal Issues Addressed
Adverse Credibility Determinationssubscribe to see similar legal issues
Application: In the absence of an adverse credibility finding, the court accepts the petitioner's testimony as true.
Reasoning: The IJ's decision lacked an adverse credibility finding, leading the court to accept Varela-Rubalcaba's testimony as true.
Exhaustion of Administrative Remediessubscribe to see similar legal issues
Application: The court finds that the petitioner adequately exhausted his argument regarding the IJ's determination of continuous physical presence by raising it in his pro se Notice of Appeal.
Reasoning: The court finds that Varela-Rubalcaba adequately raised this issue in his pro se Notice of Appeal.
Jurisdiction of the Court under 8 U.S.C. § 1252subscribe to see similar legal issues
Application: The court has jurisdiction to review the Board of Immigration Appeals decision concerning the denial of a suspension of deportation application.
Reasoning: The court has jurisdiction under 8 U.S.C. § 1252.
Remand for Reassessmentsubscribe to see similar legal issues
Application: The court remands the case for the agency to reassess the petitioner's continuous physical presence based on applicable statutory provisions.
Reasoning: Consequently, the court remands the case for the agency to reassess Varela-Rubalcaba’s continuous physical presence based on the applicable statutory provisions.
Substantial Evidence Reviewsubscribe to see similar legal issues
Application: The court determines that substantial evidence does not support the IJ’s decision because the IJ failed to consider the petitioner's application or supporting documents regarding his continuous physical presence.
Reasoning: The court notes that the IJ did not consider Varela-Rubalcaba's application or supporting documents that purportedly demonstrate his continuous physical presence over seven years, preventing a conclusion that substantial evidence supports the IJ's decision.