                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 16 2009

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



                             FOR THE NINTH CIRCUIT


MARTHA LILIA LOPEZ,                              No. 07-70138

              Petitioner,                        Agency Nos. A078-112-627
                                                            A095-234-349
  v.

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

              Respondent.


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

                            Submitted September 1, 2009**
                               San Francisco, California

Before: HUG, SKOPIL and BEEZER, Circuit Judges.

       Martha Lilia Lopez petitions for review of the Board of Immigration

Appeals’s (“BIA”) decision determining that she is ineligible for cancellation of

removal. We review the BIA’s factual determinations, “including the

determination of continuous presence,” for substantial evidence. Ibarra-Flores v.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
Gonzales, 439 F.3d 614, 618 (9th Cir. 2006). We have jurisdiction pursuant to 8

U.S.C. § 1252(a)(1). We grant the petition for review.

      The facts of this case are known to the parties. We do not repeat them.

      The BIA’s finding that the cancellation of Lopez’s border crossing card

broke her continuous presence in the United States is not supported by substantial

evidence. An alien’s continuous presence is not broken when she is refused

admission into the country by immigration officials. Tapia v. Gonzales, 430 F.3d

997, 1002 (9th Cir. 2005). Instead, “the record must contain some evidence that

the alien was informed of and accepted [the] terms” of a departure agreement.

Ibarra, 439 F.3d at 619 (quoting Reyes-Vasquez v. Ashcroft, 395 F.3d 903, 908

(8th Cir.2005)). Here, the only evidence is Lopez’s passport, in which an

immigration officer wrote “22 C.F.R. § 41.122(h)(3),” and Lopez’s testimony that

she signed, without reading, an unidentified document when her border crossing

card was canceled and she was denied entry. This evidence is not sufficient to lead

a reasonable mind to conclude that Lopez was informed of and accepted the terms

of a voluntary departure (or like) agreement.

      PETITION GRANTED and REMANDED.




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