                                                                            FILED
                             NOT FOR PUBLICATION                             JUL 27 2015

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



                             FOR THE NINTH CIRCUIT


ARMANDO GRIJALVA CUEN, AKA                       No. 13-70970
Armando Cuen Grijalva,
                                                 Agency No. A013-676-269
               Petitioner,

 v.                                              MEMORANDUM*

LORETTA E. LYNCH, Attorney General,

               Respondent.


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

                             Submitted July 21, 2015**

Before:        CANBY, BEA, and MURGUIA, Circuit Judges.

      Armando Grijalva Cuen, a native and citizen of Mexico, petitions for review

of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an

immigration judge’s (“IJ”) decision denying his applications for cancellation of

removal for certain lawful permanent residents and voluntary departure as a matter

          *
             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).
of discretion. We have jurisdiction under 8 U.S.C. § 1252. We review de novo

questions of law and constitutional claims. Coronado v. Holder, 759 F.3d 977,

982 (9th Cir. 2014). We grant the petition for review and remand.

       Before the BIA, Grijalva Cuen contended that, in determining that Grijalva

Cuen did not warrant a favorable exercise of discretion, the IJ erred in considering

alleged arrests and convictions for which there was no evidence in the record. The

BIA did not address this contention nor clarify whether it considered such

incidents in affirming the IJ’s decision. We therefore remand for the BIA to clarify

whether it considered as a negative factor in its discretionary analysis alleged

arrests and convictions for which there was no evidence in the record and, if so,

address Grijalva Cuen’s contention that doing so was error. See She v. Holder, 629

F.3d 958, 963-64 (9th Cir. 2010) (remanding where “we lack the clairvoyance

necessary to confidently infer the reasoning behind the BIA’s conclusion”);

Hernandez v. Ashcroft, 345 F.3d 824, 849 (9th Cir. 2003) (reviewing whether the

BIA considered an impermissible factor in making a discretionary determination).

      PETITION FOR REVIEW GRANTED; REMANDED.




                                           2                                       13-70970
