                                                                           FILED
                            NOT FOR PUBLICATION
                                                                            SEP 22 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JAIME BERNARDO SANTOS                            No. 12-70670
GRAMAJO,
                                                 Agency No. A070-683-045
              Petitioner,

  v.                                             MEMORANDUM*

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


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

                            Submitted August 28, 2015**
                               Pasadena, California

Before: PREGERSON, TALLMAN, and NGUYEN, Circuit Judges.

       Jaime Bernardo Santos Gramajo (“Petitioner”), a native and citizen of

Guatemala, petitions for review of a decision of the Board of Immigration Appeals

(“BIA”) affirming an immigration judge’s (“IJ”) denial of his applications for


        *
             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).
asylum, withholding of removal, protection under the Convention Against Torture

(“CAT”), special rule cancellation of removal under the Nicaraguan and Central

American Relief Act (“NACARA”), regular cancellation of removal under

8 U.S.C. § 1229b(b), and voluntary departure. To the extent we have jurisdiction,

it is pursuant to 8 U.S.C. § 1252. We dismiss the petition in part and deny in part.

      1. Petitioner is “ineligible for asylum and withholding of removal because

his refusal to join a gang does not make him a member of a particular social group

or constitute a political opinion.” Barrios v. Holder, 581 F.3d 849, 852-53 (9th

Cir. 2009) (rejecting the same claim made by another Guatemalan petitioner that he

feared persecution by “maras” or gangs); see also INS v. Elias-Zacarias, 502 U.S.

478, 482-83 (1992) (rejecting the notion that gang recruitment in Guatemala

necessarily occurs “on account of” the political opinion of the recruited party). To

the extent Petitioner’s CAT claim has not been waived, Petitioner cannot show any

alleged torture would be conducted by or with the consent or acquiescence of the

Guatemalan government. Cf. Zheng v. Ashcroft, 332 F.3d 1186, 1194-95 (9th Cir.

2003).

      2. Petitioner’s main argument centers around his claim for special rule

cancellation of removal under NACARA § 203. NACARA, Pub. L. No. 105-100,

§ 203, 111 Stat. 2160, 2193-201 (1997). However, we lack jurisdiction to review


                                          2
this claim. Illegal Immigration Reform and Immigrant Responsibility Act of 1996

(“IIRIRA”), Pub. L. No. 104-208, § 309(c)(5)(C)(ii), 110 Stat. 3009, as amended

by NACARA § 203(a); see Lanuza v. Holder, 597 F.3d 970, 972 (9th Cir. 2010);

cf. Aragon-Salazar v. Holder, 769 F.3d 699, 701 (9th Cir. 2014) (interpreting

IIRIRA § 309(f) rather than subsection (c)(5)(C)(i)).

      3. We have jurisdiction to review Petitioner’s regular cancellation of

removal claim under 8 U.S.C. § 1229b(b). See Gomez-Lopez v. Ashcroft, 393 F.3d

882, 884 (9th Cir. 2004). The IJ found—and the BIA affirmed—that Petitioner

was statutorily barred from receiving cancellation of removal for failing to meet

the good moral character standard because he provided false or inconsistent

testimony “for the purpose of obtaining an immigration benefit in the United

States, to wit: NACARA [relief].” 8 U.S.C. § 1101(f)(6) (“No person shall be

regarded as, or found to be, a person of good moral character who . . . has given

false testimony for the purpose of obtaining any benefits under this chapter . . . .”).

      We review questions of law de novo, but review the IJ and BIA’s factual

findings under the more deferential substantial evidence standard. Lopez- Cardona

v. Holder, 662 F.3d 1110, 1111 (9th Cir. 2011). We must determine whether

substantial evidence supports the agency’s factual findings that Petitioner falls

within the contours of § 1101(f)(6).


                                           3
      Contrary to the dissent’s de novo review of the agency’s decision,

substantial evidence that Petitioner lacked good moral character supports the

agency’s decision not to exercise its considerable discretion in his favor because he

provided false and inconsistent testimony in his earlier applications for

immigration benefits.

      4. We also lack jurisdiction to review the agency’s denial of voluntary

departure. 8 U.S.C. § 1229c(f) (“No court shall have jurisdiction over an appeal

from denial of a request for an order of voluntary departure . . . .”); see Hernandez-

Mezquita v. Ashcroft, 293 F.3d 1161, 1165 (9th Cir. 2002).

      PETITION DENIED IN PART AND DISMISSED IN PART.




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                                                                           FILED
Gramajo v. Lynch, No. 12-70670
                                                                            SEP 22 2015
PREGERSON, Circuit Judge, dissenting:                                   MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


      I respectfully dissent from the majority’s memorandum disposition that

denies Jaime Bernardo Santos Gramajo’s (“Santos Gramajo”) petition for

cancellation of removal under 8 U.S.C. § 1229b(b). The majority cites to 8 U.S.C.

§ 1101(f)(6) to explain its decision that substantial evidence supports the BIA’s

finding that Santos Gramajo lacks good moral character.

      Santos Gramajo is a 43-year-old native and citizen of Guatemala. He

testified that he first entered the U.S. without inspection as a young teenager and

has never departed the U.S. since his initial entry. Santos Gramajo and his wife,

Ana, met in 2004 and married in 2006. Ana is a beneficiary of Temporary

Protected Status. Santos Gramajo lives with Ana and his stepson Jose, a thirteen-

year-old United States citizen. Santos Gramajo provides essential care and support

for Ana and Jose.

      Ana testified that before Santos Gramajo entered their lives, she and her son

experienced extreme economic hardship. Despite working part-time at a service

job at Del Taco, Ana did not have enough money to provide for all of Jose’s needs.

Santos Gramajo has been taking care of them both since he entered their lives. If

he is removed, Santos Gramajo testified that because of the poverty in Guatemala,

he would not be able to find work to support Ana and Jose.
      When asked what would happen to Jose if he were removed to Guatemala,

Santos Gramajo stated that Jose relies on him and that “the child is very happy

with me . . . he has his own bed and I purchase whatever he wants for him.” Jose

has asked Santos Gramajo to “be his dad, to always be with him, and to never leave

him.” Santos Gramajo helps Jose with school work and attends parent-teacher

conferences. According to Ana, Santos Gramajo gives good advice to Jose and is a

good father to him. Ana has testified that both she and Jose would go to

Guatemala with Santos Gramajo if he is removed. It is evident that removal of his

stepfather would greatly affect Jose, who would be taken from the only life he has

ever known, to a life in an impoverished country he has never even visited.

      Santos Gramajo works installing tile for Dream Tiles near Thousand Palms,

California, and earns approximately $500 weekly. He has regularly filed state and

federal income taxes since 1996. Before moving to his current residence, Santos

Gramajo regularly attended Montes Sinai Church, where he is highly regarded as a

good Christian, charitable, and ready to help anybody in need. As the IJ pointed

out, he has not been arrested or convicted for an offense that would render him

inadmissible from the U.S.

      The record, which covers over six years of immigration filings and hearings,

reveals that Santos Gramajo did provide contradictory details about his arrival in


                                          2
the U.S. decades ago when he was a teenager. Santos Gramajo, who received at

most a fifth-grade education in Guatemala, is a native Spanish speaker. A

complete review of the record shows that Santos Gramajo frequently became

confused by questions in his hearings. He became confused about the meaning of

the word, “cedula,” Guatemala’s national identification, thinking the government

meant his birth certificate. Santos Gramajo also grew confused about the year in

which he met his wife, as well as how many of his siblings are lawfully in the U.S.

The majority accepts the IJ and BIA’s interpretations of Santos Gramajo’s

mistakes and confusion as an attempt to obtain benefits falsely, rather than

considering “all plausible and reasonable explanations for the inconsistency, such

as potential language difficulties or [Santos Gramajo]’s inability to remember a

distant event.” Martinez v. Ashcroft, 114 F. App’x 313, 315 (9th Cir. 2004)

(quotation marks omitted); see also Osorio v. I.N.S., 99 F.3d 928, 932 (9th Cir.

1996) (suggesting a “language barrier” as a possible explanation for an

inconsistency between a witness’s testimony and an application).

      I think Santos Gramajo should be evaluated on more than just confused

testimony that occurred during the course of six years of hearings and filings.

During the hearings, he was asked questions regarding dates that had occurred over

ten years earlier and concerning events that took place when he was an adolescent.


                                          3
      Many of us, or our parents, came to this country as children, and one is left

to wonder how well the exact details of those arrivals of young people on our soil

might be recalled decades later under the pressure of an immigration hearing,

conducted in a foreign language, with a wife and young child’s lives and futures

dependent on the outcome. Sadly, in such a situation, failure of an immigrant to

give exact answers could result in a family being broken apart. Indeed, that may

be a likely outcome of the majority’s memorandum disposition: Santos Gramajo’s

family will either be broken up, or forced to relocate to Guatemala, where poverty

is staggering; violent gangs target youth, like Jose, for recruitment; and there are

very few government services to support reintegration. See Conditions Facing

Guatemalans Deported from the US: Concerns and Recommendations for a

Rights-Based Approach, Guatemala Human Rights Commission (October 2014),

http://www.ghrc-usa.org/wp-content/uploads/2014/10/Migration-Report-Final.pdf.

      The BIA denied Santos Gramajo’s request for cancellation of removal solely

on isolated instances of inconsistent testimony, and on that basis found that he

lacked good moral character under 8 U.S.C. § 1101(f)(6). That decision was not

based on a fair consideration of Santos Gramajo’s many commendable character

traits, including the fact that he is a hard worker who takes good care of his family

and provides for their needs. He is also a loving father to his stepson and an active


                                           4
member of his church community. The evidence supports the view that he is a

decent and responsible person. For these reasons, I would grant Santos Gramajo’s

petition.




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