                                                                           FILED
                             NOT FOR PUBLICATION                            JUN 28 2011

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




                             FOR THE NINTH CIRCUIT



LUIS GUSTAVO FAJARDO-CHACON,                     No. 09-70142

               Petitioner,                       Agency No. A076-844-465

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

               Respondent.



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

                             Submitted June 15, 2011 **

Before:        CANBY, O’SCANNLAIN, and FISHER, Circuit Judges

       Luis Gustavo Fajardo-Chacon, a native and citizen of Guatemala, petitions

for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his

appeal from an immigration judge’s (“IJ”) removal order and denying his motion

to remand. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of


          *
             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).
discretion the denial of a motion to remand, review de novo questions of law, and

review for substantial evidence the agency’s factual findings. Romero-Ruiz v.

Mukasey, 538 F.3d 1057, 1061-62 (9th Cir. 2008). We deny in part and grant in

part the petition for review and remand.

      Substantial evidence supports the agency’s determination that Fajardo-

Chacon is inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i), and therefore ineligible

for adjustment of status under 8 U.S.C. § 1255(i). See Forbes v. INS, 48 F.3d 439,

442 (9th Cir. 1995). The BIA therefore did not abuse its discretion in denying

Fajardo-Chacon’s motion to remand.

      Because the IJ failed to determine whether Fajardo-Chacon had established

past persecution in evaluating his asylum and withholding of removal claims, we

remand for the agency to make this determination in the first instance. See Yan Xia

Zhu v. Mukasey, 537 F.3d 1034, 1045 (9th Cir. 2008).

      In light of our disposition, we need not reach Fajardo-Chacon’s remaining

contentions.

      Each party shall bear its own costs for this petition for review.

   PETITION FOR REVIEW DENIED in part; GRANTED in part;
REMANDED.




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