                                                                             FILED
                             NOT FOR PUBLICATION                             FEB 26 2013

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




                             FOR THE NINTH CIRCUIT



ANDRES MARIANO TADEO; EMMA                       No. 08-75001
ALTAGRACIA MARIANO,
                                                 Agency Nos. A079-520-794
              Petitioners,                                   A079-520-795

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

              Respondent.



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

                     Argued and Submitted February 13, 2013
                            San Francisco, California

Before: SCHROEDER, HAWKINS, and MURGUIA, Circuit Judges.

       Andres Mariano Tadeo and his wife, Emma Altagarcia Mariano, both

citizens of Mexico, appeal the BIA’s decision affirming the IJ’s denial of

cancellation of removal and denying their motion to reopen and remand.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      The BIA’s decision is reviewed for substantial evidence and is disturbed

“only if the evidence presented compels a reasonable factfinder to reach a contrary

result.” Vera-Villegas v. INS, 330 F.3d 1222, 1230 (9th Cir. 2003) (citation

omitted) (internal quotation marks omitted). We grant the petition and remand for

further proceedings.

I.    Andres Mariano Tadeo

      To be eligible for cancellation of removal Andres must prove by a

preponderance of the evidence that he is “a person of good moral character,” 8

U.S.C. § 1229b(b)(1)(B), a fact which he is precluded from establishing if he gave

“false testimony for the purpose of obtaining any” immigration benefit, 8 U.S.C. §

1101(f)(6). Andres’s former, and now-disbarred, counsel incorrectly listed 1989 as

Andres’s date of entry on his initial asylum application. Andres repeated the

incorrect date to an asylum officer because his counsel told Andres that he could

not correct the date. The record lacks sufficient evidence to demonstrate that

Andres gave false testimony “with the subjective intent of obtaining immigration

benefits.” Kungys v. United States, 485 U.S. 759, 780 (1988).

      First, the misrepresentation was immaterial and “it will be relatively rare that

the Government will be able to prove that a misrepresentation” that is not material

“was nonetheless made with the subjective intent of obtaining those benefits.” Id.


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at 780–81. Second, Mr. Mariano testified credibly that he did not give the false

testimony in order to obtain an immigration benefit. See Lopez-Alvarado v.

Ashcroft, 381 F.3d 847, 851 (9th Cir. 2004) (testimony must be accepted as true

absent an adverse credibility finding). Third, the transcript of the hearing contains

gaps when Andres is explaining his subjective intent. Fourth, the fact that Andres

was following the advice of counsel is insufficient to demonstrate his subjective

intent to obtain an immigration benefit because the record does not reveal what his

counsel told him.

      Because the IJ and BIA stopped after invoking the statutory bar, the case is

remanded for a determination of whether Andres has good moral character and is

otherwise eligible for cancellation of removal. INS v. Orlando Ventura, 537 U.S.

12, 16 (2002).

II.   Emma Altagarcia Mariano

      The IJ made an adverse credibility determination and it is evaluated under

the pre-REAL ID Act standard, which requires that the basis for the determination

must go to the heart of the alien’s claim. Li v. Ashcroft, 378 F.3d 959, 962 (9th

Cir. 2004). The heart of Emma’s claim is that she was continuously present in the

United States beginning in 1990. None of the inconsistencies identified by the IJ

relate to her continued presence.


                                         -3-
      The presence of her parents at the 1990 border crossing is irrelevant to her

claim. See Singh v. Gonzales, 439 F.3d 1100, 1108–09 (9th Cir. 2006) (non-

critical details, even if relating to a critical event, cannot form basis of adverse

credibility finding). The date of Emma’s brief enrollment in school in the United

States is similarly not relevant to her continued presence. The confusing testimony

about the ages of Emma’s nieces at the time she entered the United States “must be

viewed in light of all the evidence presented in the case,” Kaur v. Gonzales, 418

F.3d 1061, 1066 (9th Cir. 2005), and we cannot “abandon our common sense,” id.

Emma’s passport shows she entered the United States in 1990 and, because there is

no suggestion that the stamp is not genuine, common sense suggests that this is the

date that she entered the country.

      Additionally, even if the inconsistencies identified by the IJ were actual

inconsistencies that went to the heart of Emma’s claim, the IJ erred because it did

not “afford [Emma] a chance to explain inconsistencies, and [the IJ did not]

address these explanations.” Singh, 439 F.3d at 1105.

      On remand the BIA should consider Emma’s credibility on an open record.

See Soto-Olarte v. Holder, 555 F.3d 1089, 1094 (9th Cir. 2009); see also Orlando

Ventura, 537 U.S. at 16 (remand for explanation and investigation is appropriate

save for rare cases).


                                           -4-
III.   Motion to Reopen

       Because the case is remanded on an open record, see Soto-Olarte, 555 F.3d

at 1095–96, and the BIA should consider any relevant evidence, it is not necessary

to determine if it was an error to deny the motion to reopen.

       The petition is GRANTED and the case is REMANDED for further

proceedings.




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