                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 14 2010

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




                            FOR THE NINTH CIRCUIT

DAMIEN ANTONIO SAWYERS, etc.                     No. 08-70181

              Petitioner,                        Agency No. A044-852-478

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

              Respondent.



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

                            Submitted October 8, 2010 **
                             San Francisco, California

Before: BEEZER and GRABER, Circuit Judges, and CARNEY,*** District Judge.

       Petitioner Damien Antonio Sawyers petitions for review of the Board of

Immigration Appeal’s dismissal of his appeal from the immigration judge’s denial




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Cormac J. Carney, United States District Judge for the
Central District of California, sitting by designation.
of his request for cancellation of removal under 8 U.S.C. § 1229b(a)(1). We grant

the petition.

       Petitioner argues that, pursuant to Cuevas-Gaspar v. Gonzales, 430 F.3d

1013 (9th Cir. 2005), we must impute to him his mother’s residency for purposes

of cancellation of removal. In its response brief, the government argued that our

decision in Cuevas-Gaspar no longer controls. As the government concedes in its

Federal Rule of Appellate Procedure 28(j) letter to this court, however, we

thereafter rejected those same arguments in Mercado-Zazueta v. Holder, 580 F.3d

1102 (9th Cir. 2009).

       Accordingly, we grant the petition and remand on an open record for any

further determinations that the BIA deems necessary, including a determination of

when imputation should start. See INS v. Orlando Ventura, 537 U.S. 12 (2002)

(per curiam); Soto-Olarte v. Holder, 555 F.3d 1089 (9th Cir. 2009). The agency

must make findings in the first instance regarding the residency of Petitioner’s

mother and regarding whether Petitioner was a minor residing with her.

       Petition GRANTED. Case REMANDED.




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