Opinion
SUMMARY ORDER No. 02-4550-ag.
January 25, 2007.
Appeal from a final decision of the Board of Immigration Appeals.
AFTER ARGUMENT AND UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND DECREED that the petition for review is GRANTED.
Appearing for Petitioner: STANLEY H. WALLENSTEIN (Alan Michael Strauss, of counsel), New York, N.Y.
Appearing for Respondent: JAMES G. GENCO, Assistant United States Attorney (Kevin J. O'Connor, United States Attorney for the District of Conn., on the brief), Hartford, Conn.
PRESENT: HON. PIERRE N. LEVAL, HON. CHESTER J. STRAUB, HON. RICHARD C. WESLEY, Circuit Judges.
Petitioner Pascacio Cuate petitions for review of a September 4, 2002, decision by the Board of Immigration Appeals ("BIA"), In re Pascacio Cuate, A 73 621 214 (B.I.A. Sept. 4, 2002), affirming the August 3, 2001, judgment of Immigration Judge ("IJ") Douglas Schoppert denying Cuate cancellation of removal under 8 U.S.C. § 1229b(b) and ordering him removed from the United States. We assume the parties' familiarity with the procedural history, the relevant facts, and the specification of issues on appeal.
The government concedes that the IJ erred by failing to address the testimony of two witnesses called by Cuate to establish the ten years of continuous physical presence in the United States necessary for cancellation of removal under section 1229b(b)(1)(A). Cf. Jin Shui Qiu v. Ashcroft, 329 F.3d 140, 149 (2d Cir. 2003) (holding that the BIA must "consider all factual assertions in an applicant's claim for eligibility [except] where the evidence in support of a factor potentially giving rise to eligibility is `too insignificant to merit discussion'"). Although the government also concedes that this error would warrant a remand, it contends that remand would be futile because of the overwhelming evidence that Cuate agreed to a voluntary departure in lieu of being placed in removal proceedings and was transported to Mexico in August of 1988, so that he could not have accumulated the requisite ten years in any case.
Regardless of errors by the IJ, we will not remand a case to the BIA under the following circumstances:
a) when the IJ articulates an alternative and sufficient basis for her determination;
b) when her reliance on the erroneous aspect of her reasoning is substantially tangential to her non-erroneous findings; or c) when overwhelming evidence in the record makes it clear that the same decision is inevitable on remand, or, in short, whenever the reviewing panel is confident that the agency would reach the same result upon a reconsideration cleansed of errors.
Li Hua Lin v. U.S. Dep't of Justice, 453 F.3d 99, 107 (2d Cir. 2006).
Here, we cannot confidently predict that the BIA would hold that Cuate has failed to establish eligibility for cancellation of removal absent the errors by the IJ. Unlike other circuits, we have not yet had an opportunity to consider and apply the BIA's decision in In re Hilario Romalez-Alcaide, 23 I. N. Dec. 423 (BIA 2002), upon which the government relies. We decline the invitation in this case primarily because "[w]here the BIA failed to consider significant evidence" — as the IJ did here by failing to address the testimony of two witnesses called by Cuate — the BIA "has failed to perform its fact-finding function," and thus, this case "is not ripe for appellate review." Yan Chen v. Gonzales, 417 F.3d 268, 273 (2d Cir. 2005) (internal quotation marks omitted). Even were we to hold that the rule from Romalez-Alcaide should be applied in this case, the record lacks sufficient detail of Cuate's detention and his alleged agreement to depart voluntarily, albeit under threat of removal proceedings, for us to be confident that the BIA would reach the same conclusion on remand. Neither the IJ nor any of the parties addressed the issue of Cuate's removal to Mexico or its impact on his eligibility for cancellation of removal during the proceedings.
While the immigration forms signed by Cuate in the record are probative of his knowing and voluntary agreement to depart the country, they are not sufficient to meet the high standard of "overwhelming evidence" necessary to convince us that remand to the BIA would be futile. Cf. Reyez-Vasquez v. Ashcroft, 395 F.3d 903, 908 n. 6 (8th Cir. 2005) (holding that an INS form indicating that the petitioner had been "read his administrative rights outloud and state[d] that he understood them [and] requested a voluntary return to Mexico" was insufficient to support a finding that the petitioner had voluntarily and knowingly agreed to depart where there was credible testimony from the petitioner to the contrary). Moreover, we note that the INS form I-274 in the record is in Spanish and no official translation has been provided by the government and that the other document signed by Cuate is undated.
Additionally, Cuate has not had an opportunity to offer his own testimony regarding the circumstances under which the forms were executed. See Ibarra-Flores v. Gonzales, 439 F.3d 614, 620 (9th Cir. 2006) (remanding for further factfinding where the alien testified that immigration officers misrepresented the import of the voluntary departure form).
For the foregoing reasons, the petition is hereby GRANTED and the matter is remanded for further proceedings consistent with this order. The government's motion for summary denial of the petition is DENIED.