                                                                                FILED
                             NOT FOR PUBLICATION                                JAN 13 2012

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



                             FOR THE NINTH CIRCUIT


ENRIQUE JAIME RAMIREZ; CLAUDIA                   No. 07-71545
JENNYFER JAIME FRAGOSO,
                                                 Agency Nos. A079-536-069
              Petitioners,                                   A079-536-070

       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 May 5, 2011
                              Pasadena, California

Before: PREGERSON, FISHER and BERZON, Circuit Judges.

      Enrique Jaime Ramirez petitions for review of the Board of Immigration

Appeals’ (BIA) denial of his application for cancellation of removal and his motion

for remand. He argues that the BIA erred in holding that he was ineligible for

cancellation of removal under 8 U.S.C. § 1227(a)(2)(E) because he “was convicted

of a crime of domestic violence (infliction of corporal injury on a spouse).”


        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Because the agency’s reasoning is not clear, we grant the petition, vacate the BIA’s

decision and remand. See Garcia Gomez v. Gonzales, 498 F.3d 1050, 1051 (9th

Cir. 2007) (per curiam).

      In its decision, the BIA failed to give a reasoned basis for its determination

that Jaime Ramirez’s conviction qualifies as a crime of domestic violence under 8

U.S.C. § 1227(a)(2)(E). The BIA does not identify the crime of conviction it relied

upon, which is problematic because the immigration judge’s decision referenced a

1997 “convict[ion] for a crime of domestic violence in violation of Section 273.5

of the California Penal Code,” but the record reflects that Jaime Ramirez’s only

1997 conviction was under § 273.55, not § 273.5. Further, the BIA does not make

clear whether it reached its decision based on a categorical or modified categorical

analysis. If the latter, the BIA should identify the evidence in the record of

conviction that it relies upon. See Tokatly v. Ashcroft, 371 F.3d 613, 621 (9th Cir.

2004) (“[T]he record of conviction[] includ[es] the indictment, the judgment of

conviction, jury instructions, a signed guilty plea, or the transcript from the plea

proceedings.” (internal quotation marks omitted)). If the former, it should clarify

how the crime of conviction categorically falls within the § 1227(a)(2)(E)(i)

provisions – for example, “a current or former spouse . . . an individual similarly

situated to a spouse . . . [or] a person who is protected from that individual’s acts


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under the domestic or family violence laws of the United States or any state . . . .”

8 U.S.C. § 1227(a)(2)(E)(i).

      Because we cannot discern the basis for the BIA’s decision, we accept the

government’s suggestion to remand for a clearer explanation. See Eneh v. Holder,

601 F.3d 943, 947-48 (9th Cir. 2010) (remanding to the BIA “for a clearer

explanation of its decision” where its “sparse reasoning was inadequate to enable

[the Court of Appeals] to perform any meaningful review” (internal quotation

marks omitted)).

      Jaime Ramirez’s petition for review was consolidated with that of his

daughter, Claudia Jennyfer Jaime Fragoso (Jennyfer). Jennyfer has appealed the

BIA’s refusal to remand her application for cancellation of removal in light of her

mother becoming a legal permanent resident (LPR) and therefore a new qualifying

relative for purposes of Jennyfer’s cancellation application. 8 U.S.C.

§ 1252(a)(2)(B)(i) generally strips the court of jurisdiction to review a

“[discretionary] judgment regarding the granting of [cancellation of removal].”

Fernandez v. Gonzalez, 439 F.3d 592, 594 (9th Cir. 2006) (alterations in original;

internal quotation marks omitted). In this case, however, the IJ did not reach the

hardship question or consider any evidence thereof because she preemptively

found there was no qualifying relative whose hardship could be considered.


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Jennyfer’s motion to reopen, therefore, is materially different from the

circumstances addressed in Fernandez. See id. at 595 (holding no jurisdiction to

review denial of motion to reopen where IJ made an initial hardship determination

and petitioner sought only to introduce additional, cumulative evidence of

hardship). Here, Jennyfer sought to reopen only because of her mother’s change of

status to a qualifying relative, to present new, noncumulative evidence of hardship

the IJ had not considered. We therefore have jurisdiction, grant her petition and

remand to the BIA to consider these changed circumstances and hardship evidence.

If the BIA grants relief to Jaime Ramirez, it should also consider how that affects

relief for Jennyfer.

      The panel will retain jurisdiction over any subsequent appeals in this matter.

      GRANTED and REMANDED.




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