                                                                              FILED
                            NOT FOR PUBLICATION                               NOV 05 2013

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



                            FOR THE NINTH CIRCUIT


MIGUEL RAMOS MEZA,                               Nos. 09-70652, 09-73488

              Petitioner,                        Agency No. A070-966-736

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

              Respondent.


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

                            Submitted October 10, 2013**
                                Pasadena, California

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

       Miguel Ramos Meza petitions for review of his final order of removal and

the Board of Immigration Appeals’s (BIA) denial of his motion to reopen. We

deny the petition for review of the final order of removal. We grant the petition 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).
review of the denial of reopening and remand for a renewed exercise of agency

discretion.

       1. The BIA decision properly relied on Ramos’s false sworn testimony

before the asylum officer and before the immigration judge to hold that Ramos

lacked good moral character and was therefore ineligible for cancellation of

removal. See Bernal v. INS, 154 F.3d 1020, 1022 (9th Cir. 1998).

       2. Ramos waived his argument on appeal as to the lack of substantiation of

his false sworn testimony before the asylum officer because he failed to raise that

challenge before the BIA. See Ramos v. INS, 246 F.3d 1864, 1266-67 (9th Cir.

2001) (holding that we lack jurisdiction when a petitioner fails to argue before the

BIA that there is no evidence he was under oath during the asylum interview).

Even if not waived, the argument lacks merit because the administrative record

contains Ramos’s signed oath to tell the truth during his interview with the asylum

officer.

       3. Substantial evidence supports the BIA’s finding that Ramos gave false

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

1101(f)(6); see Kungys v. United States, 485 U.S. 759, 780 (1988). Ramos

repeatedly admitted under cross-examination before the immigration judge that he

had given false testimony with the intent of obtaining an immigration benefit.


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      4. The BIA abused its discretion by failing to consider the favorable factors

Ramos offered in favor of discretionary reopening, including his support of young

U.S. citizen children, well-documented work history, allegedly continuous

presence, and potentially meritorious U visa application. Although dishonesty or

other misconduct is an important factor militating against discretionary reopening,

Sequeira-Solano v. INS, 104 F.3d 278, 279 (9th Cir. 1997) (discussing Matter of

Barocio, 19 I. & N. Dec. 255 (BIA 1985)), it is not a per se bar to reopening,

Arrozal v. INS, 159 F.3d 429, 433 (9th Cir. 1998). Rather, as we have repeatedly

held, the BIA “must weigh favorable factors against unfavorable factors” in

determining whether to deny reopening in its discretion. Id.; see Yan Rong Zhao v.

Holder, No. 11-73321, --- F.3d ----, 2013 WL 4767353, at *4 (9th Cir. Sept. 6,

2013); Virk v. INS, 295 F.3d 1055, 1060 (9th Cir. 2002).

      The government does not dispute that the BIA did not weigh Ramos’s

favorable factors against his false testimony, but contends that the BIA would not

have been able to credit those factors because Ramos lied to gain immigration

benefits. The BIA did not articulate this reasoning, however, and we cannot affirm

the BIA on a ground upon which it did not rely. Ali v. Holder, 637 F.3d 1025,

1029 (9th Cir. 2011).




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      5. The BIA also erroneously based its decision to deny Ramos’s motion to

reopen on the ground that United States Citizenship and Immigration Services

(USCIS) had sole jurisdiction over his U visa application. At the time of this

decision, dated October 7, 2009, it was an abuse of discretion for the BIA to deny

reopening solely on the ground that USCIS had jurisdiction over the underlying

relief. Kalilu v. Mukasey, 548 F.3d 1215, 1217-18 (9th Cir. 2008) (per curiam). It

remains an open question what effect, if any, the subsequent decision in Matter of

Yauri, 25 I. & N. Dec. 103 (BIA 2009), would have on Ramos’s petition.

      The petition in No. 09-70652 is DENIED. The petition in No. 09-73488 is

GRANTED, and we REMAND to the BIA to reconsider Ramos’s motion to

reopen.




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