                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 18 2010

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




                            FOR THE NINTH CIRCUIT



VALENTIN ISIDRO-ZAMORANO,                        No. 07-73832

             Petitioner,                         Agency No. A098-571-409

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

             Respondent.



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

                           Submitted January 12, 2010 **
                              Pasadena, California

Before: CANBY, HALL, and O’SCANNLAIN, Circuit Judges.

       Valentin Isidro-Zamorano appeals the BIA’s denial of his application for

cancellation of removal. The facts are well-known to the parties. We need not

repeat them here.




        *
             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).
      An alien is eligible for cancellation of removal if he establishes, among other

things, “that removal would result in exceptional and extremely unusual hardship

to the alien’s spouse, parent, or child, who is a citizen of the United States or an

alien lawfully admitted for permanent residence.” 8 U.S.C. § 1229b(b)(1)(D)

(emphasis added). A “child” is “an unmarried person under twenty-one years of

age.” 8 U.S.C. § 1101(b)(1). At the time Isidro-Zamorano applied for cancellation

of removal his son, Tomas, was twenty years old, and could serve as Isidro-

Zamorano’s qualifying relative for his application. During the course of

immigration proceedings, Tomas “aged out,” turning twenty-one years old. The

Immigration Judge (“IJ”) subsequently ruled Isidro-Zamorano ineligible for

cancellation of removal because he no longer had a qualifying relative. The Board

of Immigration Appeals (“BIA”), in a one-judge decision, affirmed.

      The BIA and IJ relied on a decision by a prior three-judge panel of the BIA,

Matter of Gomez, 23 I. & N. Dec. 893 (BIA 2006), a case in which an alien’s

parents became lawful permanent residents during the course of her immigration

proceedings. Id. The BIA held that the alien’s parents became qualifying relatives

for purposes of her application for cancellation of removal. Id. at 894. Thus, it

further held, she became eligible for cancellation of removal, even though she was

ineligible at the outset of her proceedings. Id. Here, however, the BIA and IJ held


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that Isidro-Zamorano became ineligible due to the natural aging of his child, even

though he was eligible for cancellation of removal at the outset of his proceedings.

Gomez thus does not control this case.

      Since Gomez is not determinative, we need not defer to the agency in this

case. Nor does the one-judge opinion in this case merit Chevron deference. Chen

v. Mukasey, 524 F.3d 1028, 1031 (9th Cir. 2008); see Chevron U.S.A. Inc. v.

Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). Therefore, the BIA “has not

yet exercised its Chevron discretion to interpret the statute.” Negusie v. Holder,

129 S. Ct. 1159, 1167 (2009). In such a situation, the Supreme Court has held that

“the proper course, except in rare circumstances, is to remand to the agency for

additional investigation or explanation.” Id. (internal quotation marks and citations

omitted).

      Consequently, we GRANT the petition for review, VACATE the order of

the BIA, and REMAND the case to the BIA for a three-judge panel to determine

whether Gomez should be extended to circumstances like those in this case.




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