                                                                          FILED
                            NOT FOR PUBLICATION                            JUN 25 2014

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



                            FOR THE NINTH CIRCUIT


ISRAEL CHARCO-SILVA, AKA Adrian                  No. 08-72756
Charco,
                                                 Agency No. A077-312-220
              Petitioner,

       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 15, 2014
                              Pasadena, California

Before: KOZINSKI, Chief Judge, and WARDLAW and FISHER, Circuit Judges.

      Israel Charco-Silva petitions for review of the BIA’s decision denying his

motion to reconsider its decision sustaining the government’s appeal of the IJ’s

decision granting his application for cancellation of removal. We have jurisdiction

under 8 U.S.C. § 1252, we review for an abuse of discretion, see Cano-Merida v.

INS, 311 F.3d 960, 964 (9th Cir. 2002), and we grant the petition.


        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Charco-Silva gave conflicting testimony on the length of his trip to Mexico.

He initially testified that the trip lasted 18 days. He subsequently testified that it

lasted four months. The IJ noted the inconsistency but, without making an express

finding on the length of the trip, found that Charco-Silva “has established that he

has been physically present in the United States for the requisite ten year period.”

“Based on these discrepancies,” the BIA found “clear error in the Immigration

Judge’s finding that respondent was physically present in the United States for a

continuous period of not less than 10 years.” Charco-Silva moved for

reconsideration, arguing that the BIA had engaged in improper factfinding and that

“the Board should have remanded for further, specific fact-finding before the IJ on

Respondent’s trip to his native country before finding him statutorily ineligible for

Cancellation of Removal.” The BIA rejected Charco-Silva’s argument, concluding

that it had properly applied its clear error standard of review. We disagree.

      We recognize that there are two ways to read the record, but we conclude

that the BIA erred under either reading. Under one reading, the IJ never made a

factual finding on the length of Charco-Silva’s trip to Mexico. If that was the case,

then the BIA was required to remand the matter to the IJ rather than engaging in its

own factfinding. See Rodriguez v. Holder, 683 F.3d 1164, 1170 (9th Cir. 2012)

(“Where the IJ has not made a finding of fact on a disputed matter, and such a


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finding is necessary to resolution of the case, the BIA must remand to the IJ to

make the required finding; it may not conduct its own fact-finding.” (citing 8

C.F.R. § 1003.1(d)(3)(iv))).

      Under the alternative reading of the record, the IJ made an implicit finding,

based on all of the evidence in the record, that the trip lasted 18 days rather than

four months. If so, then the BIA was not free to overturn that finding simply

because it “would have weighed the evidence differently or decided the facts

differently had it been the factfinder.” Id. at 1171 (internal quotation marks

omitted); accord In re R-S-H, 23 I. & N. Dec. 629, 637 (BIA 2003). On the

contrary, “[w]here there are two permissible views of the evidence, the factfinder’s

choice between them cannot be clearly erroneous.” Rodriguez, 683 F.3d at 1171

(emphasis omitted) (quoting Anderson v. Bessemer City, 470 U.S. 564, 574

(1985)); accord In re J-Y-C-, 24 I. & N. Dec. 260, 263 (BIA 2007).

      The government suggests that the BIA’s decision could be sustained as a

finding of insufficient evidence rather than as a finding of clear error on the part of

the IJ. The BIA, however, reversed the IJ on the ground of clear error, not

insufficient evidence, and we may not deny a petition for review on a ground upon

which the BIA did not rely. See Andia v. Ashcroft, 359 F.3d 1181, 1184 (9th Cir.




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2004) (per curiam) (“In reviewing the decision of the BIA, we consider only the

grounds relied upon by that agency.”).

      Where, as here, the BIA fails to follow its own regulations and makes factual

findings, it commits an error of law, which we have jurisdiction to correct. See

Rodriguez, 683 F.3d at 1170; see also Hernandez-Velasquez v. Holder, 611 F.3d

1073, 1077 (9th Cir. 2010) (“An error of law is an abuse of discretion.”). We

therefore grant the petition for review and remand to the BIA to remand to the IJ to

make an express finding of fact on the length of Charco-Silva’s trip to Mexico.

      PETITION GRANTED AND REMANDED.




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