                                NOT FOR PUBLICATION

                      UNITED STATES COURT OF APPEALS                           FILED
                                FOR THE NINTH CIRCUIT                           JAN 13 2010

                                                                          MOLLY C. DWYER, CLERK
                                                                             U.S. COURT OF APPEALS

MARIA LOURDES MACIEL,                               No. 05-74047

            Petitioner,                             Agency No. A75 307 200

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

            Respondent.


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

                          Argued and Submitted November 4, 2009
                                 San Francisco, California

Before: NOONAN, W. FLETCHER, Circuit Judges, and DUFFY**, District Judge.

       Maria Lourdes Maciel petitions for review of a final decision of the Board of

Immigration Appeals (“BIA”) affirming without opinion an Immigration Judge’s

(“IJ”) order denying her application for cancellation of removal under 8 U.S.C. §

1229b(b). The IJ found that Maciel was ineligible for cancellation of removal

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Kevin T. Duffy, United States District Judge for the
Southern District of New York, sitting by designation.
because she gave false testimony and so, as a matter of law, could not show good

moral character. We affirm.

      This court reviews the BIA’s findings of statutory ineligibility for

cancellation of removal for substantial evidence. See Bernal v. Imm. & Nat. Svc.,

154 F.3d 1020, 1022 (9th Cir. 1998). Where, as here, the BIA affirms without

opinion, this court reviews the immigration judge’s opinion as the final agency

determination. Lanza v. Ashcroft, 389 F.3d 917, 925 (9th Cir. 2004).

      The Attorney General, through an IJ or the BIA, may grant cancellation of

removal to an otherwise deportable nonresident alien where that alien’s removal

would cause significant hardship to the alien’s spouse, parent, or child who is a

United States citizen or lawful permanent resident. 8 U.S.C. § 1229b(b).

However, the Attorney General may only grant such a cancellation of removal

where the alien has met certain requirements, including that she has been a person

of good moral character during a period of ten years or more during which she was

continuously present in the United States. Id. The ten year period must

immediately precede the final agency decision on her application for cancellation

of removal. Matter of Ortega-Cabrera, 23 I. & N. Dec. 793, 796-98 (BIA 2005).

By statute, “no person shall be regarded as, or found to be, a person of good moral

character who, during the period for which good moral character is required to be


                                          2
established . . . has given false testimony for the purposes of obtaining any benefits

under [the United States immigration laws].” 8 U.S.C. § 1101(f)(6); Kungys v.

United States, 485 U.S. 759, 780 (1988).

      It is undisputed that Maciel gave false testimony in her immigration hearing

on September 18, 2003, that those statements were her own, and that she gave that

testimony for the purpose of obtaining an immigration benefit. She recanted in her

subsequent testimony on September 30, 2003. In Llanos-Senarillos v. United

States, we held that “If the witness withdraws the false testimony of his own

volition and without delay, the false statement and its withdrawal may be found to

constitute one inseparable incident out of which an intention to deceive cannot

rightly be drawn.” 177 F.2d 164, 165 (9th Cir. 1949). The IJ here found that

Maciel’s recanting was neither timely nor voluntary, and that he was barred from

finding that Maciel had good moral character. A recantation is insufficient where

“The withdrawal . . . followed only after [petitioner] knew his false testimony

would not deceive.” Id. at 165-66. The IJ noted, accurately, that “It was only after

DHS stated its intention to call the asylum officer,” whose testimony would have

exposed inconsistencies in Maciel’s story, that she recanted. The IJ’s decision that

Maciel was within the statutory bar was thus supported by substantial evidence.

      The petition is DENIED and the decision of the BIA is AFFIRMED.


                                           3
