                                                                           FILED
                             NOT FOR PUBLICATION                            JAN 24 2011

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




                             FOR THE NINTH CIRCUIT



CARLOS MARTINEZ GUTIERREZ,                       No. 08-70436

               Petitioner,                       Agency No. A078-463-557

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

               Respondent.



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

                             Submitted January 10, 2011 **

Before:        BEEZER, TALLMAN, and CALLAHAN, Circuit Judges.

       Carlos Martinez Gutierrez, a native and citizen of Mexico, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order sustaining the

government’s appeal from an immigration judge’s decision granting his application




          *
             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).
for cancellation of removal. We have jurisdiction under 8 U.S.C. § 1252, and we

grant the petition for review and remand for further proceedings.

      Because the BIA decided this case without the benefit of our decision in

Mercado-Zazueta v. Holder, 580 F.3d 1102, 1113 (9th Cir. 2009) (“[F]or purposes

of satisfying the five years of lawful permanent residence required under INA

section 240A(a)(1), 8 U.S.C. § 1229b(a)(1), a parent’s status as a lawful permanent

resident is imputed to the unemancipated minor children residing with that

parent.”), we remand to the BIA to allow it to reconsider Martinez Gutierrez’s

cancellation of removal application. See generally INS v. Ventura, 537 U.S. 12

(2002) (per curiam).

      PETITION FOR REVIEW GRANTED; REMANDED.




                                         2                                   08-70436
