Damien Antonio Sawyers, etc. v. ERIC H. HOLDER JR., Attorney General

This disposition is not appropriate for publication and is not precedent*
except as provided by Ninth Circuit Rule 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. Fed. R. App. P. 34(a)(2).
The Honorable Cormac J. Carney, United States District Judge for the***
Central District of California, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAMIEN ANTONIO SAWYERS, etc.
Petitioner,
v.
ERIC H. HOLDER JR., Attorney General,
Respondent.
No. 08-70181
Agency No. A044-852-478
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 8, 2010**
San Francisco, California
Before: BEEZER and GRABER, Circuit Judges, and CARNEY, District Judge.***
Petitioner Damien Antonio Sawyers petitions for review of the Board of
Immigration Appeal’s dismissal of his appeal from the immigration judge’s denial
FILED
OCT 14 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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of his request for cancellation of removal under 8 U.S.C. § 1229b(a)(1). We grant
the petition.
Petitioner argues that, pursuant to Cuevas-Gaspar v. Gonzales, 430 F.3d
1013 (9th Cir. 2005), we must impute to him his mother’s residency for purposes
of cancellation of removal. In its response brief, the government argued that our
decision in Cuevas-Gaspar no longer controls. As the government concedes in its
Federal Rule of Appellate Procedure 28(j) letter to this court, however, we
thereafter rejected those same arguments in Mercado-Zazueta v. Holder, 580 F.3d
1102 (9th Cir. 2009).
Accordingly, we grant the petition and remand on an open record for any
further determinations that the BIA deems necessary, including a determination of
when imputation should start. See INS v. Orlando Ventura, 537 U.S. 12 (2002)
(per curiam); Soto-Olarte v. Holder, 555 F.3d 1089 (9th Cir. 2009). The agency
must make findings in the first instance regarding the residency of Petitioner’s
mother and regarding whether Petitioner was a minor residing with her.
Petition GRANTED. Case REMANDED.

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