                                                                           FILED
                             NOT FOR PUBLICATION                            JUN 29 2010

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




                             FOR THE NINTH CIRCUIT



TOMASA DELGADO-MUNIZ;                            No. 05-72748
MARCOS TOMAS ROSARIO-
DELGADO,                                         Agency Nos. A075-619-152
                                                             A075-666-210
              Petitioners,

  v.                                             MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



                      On Petitions for Review of Orders of the
                          Board of Immigration Appeals

                        Argued and Submitted May 3, 2010
                              Pasadena, California

Before: O’SCANNLAIN and TALLMAN, Circuit Judges, and LEFKOW, District
Judge.**

       Tomasa Delgado-Muniz (“Delgado”) and her son Marcos Tomas Rosario-

Delgado, natives and citizens of Mexico, petition for review of the Board of


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
             The Honorable Joan Humphrey Lefkow, United States District Judge
for the Northern District of Illinois, sitting by designation.
Immigration Appeals’ (“BIA”) orders dismissing their appeals from an

immigration judge’s (“IJ”) decisions denying their applications for cancellation of

removal. The facts are known to the parties and need not be repeated here except

to the extent necessary.

         Delgado argues that the IJ was biased and that she was denied a fair hearing.

Because she failed to exhaust such due process claims before the BIA, we lack

jurisdiction to review them. See Tall v. Mukasey, 517 F.3d 1115, 1120 (9th Cir.

2008).

         The BIA determined that Delgado is ineligible for cancellation of removal

because she lacks a qualifying relative. See 8 U.S.C. § 1292b(b)(1)(D), (2)(A)(i).

This determination is not supported by substantial evidence in this pre-REAL ID

Act case, however, because the IJ improperly discredited her testimony and

evidence without making an express adverse credibility determination or expressly

declaring the challenged Mexican documents to be fraudulent. See Lopez-

Alvarado v. Ashcroft, 381 F.3d 847, 851 (9th Cir. 2004). Delgado’s testimony

must be credited as true. See id. Furthermore, “[t]he IJ’s demand for more

extensive documentary evidence contravenes our established standards for

credibility determinations.” Id. at 855. We therefore grant the petition in part and




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remand for a determination whether Delgado satisfies the other requirements for

cancellation of removal under either 8 U.S.C. § 1292b(b)(1) or (2).

      Although we lack jurisdiction over the BIA’s discretionary determination

that Marcos failed to show the requisite exceptional and extremely unusual

hardship to his U.S. citizen daughter, Romero-Torres v. Ashcroft, 327 F.3d 887,

892 (9th Cir. 2003), we note that Delgado may become another qualifying relative

for Marcos if her application is approved on remand. Accordingly, we remand for

further consideration of Marcos’s application for cancellation of removal.

      PETITION FOR REVIEW DISMISSED in part; GRANTED in part;

REMANDED.




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