Valentin Isidro-Zamorano v. ERIC H. HOLDER Jr., Attorney General

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VALENTIN ISIDRO-ZAMORANO,
Petitioner,
v.
ERIC H. HOLDER Jr., Attorney General,
Respondent.
No. 07-73832
Agency No. A098-571-409
MEMORANDUM *
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 12, 2010**
Pasadena, California
Before: CANBY, HALL, and O’SCANNLAIN, Circuit Judges.
Valentin Isidro-Zamorano appeals the BIA’s denial of his application for
cancellation of removal. The facts are well-known to the parties. We need not
repeat them here.
FILED
FEB 18 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 3 --

2
An alien is eligible for cancellation of removal if he establishes, among other
things, “that removal would result in exceptional and extremely unusual hardship
to the alien’s spouse, parent, or child, who is a citizen of the United States or an
alien lawfully admitted for permanent residence.” 8 U.S.C. § 1229b(b)(1)(D)
(emphasis added). A “child” is “an unmarried person under twenty-one years of
age.” 8 U.S.C. § 1101(b)(1). At the time Isidro-Zamorano applied for cancellation
of removal his son, Tomas, was twenty years old, and could serve as Isidro-
Zamorano’s qualifying relative for his application. During the course of
immigration proceedings, Tomas “aged out,” turning twenty-one years old. The
Immigration Judge (“IJ”) subsequently ruled Isidro-Zamorano ineligible for
cancellation of removal because he no longer had a qualifying relative. The Board
of Immigration Appeals (“BIA”), in a one-judge decision, affirmed.
The BIA and IJ relied on a decision by a prior three-judge panel of the BIA,
Matter of Gomez, 23 I. & N. Dec. 893 (BIA 2006), a case in which an alien’s
parents became lawful permanent residents during the course of her immigration
proceedings. Id. The BIA held that the alien’s parents became qualifying relatives
for purposes of her application for cancellation of removal. Id. at 894. Thus, it
further held, she became eligible for cancellation of removal, even though she was
ineligible at the outset of her proceedings. Id. Here, however, the BIA and IJ held

-- 2 of 3 --

3
that Isidro-Zamorano became ineligible due to the natural aging of his child, even
though he was eligible for cancellation of removal at the outset of his proceedings.
Gomez thus does not control this case.
Since Gomez is not determinative, we need not defer to the agency in this
case. Nor does the one-judge opinion in this case merit Chevron deference. Chen
v. Mukasey, 524 F.3d 1028, 1031 (9th Cir. 2008); see Chevron U.S.A. Inc. v.
Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). Therefore, the BIA “has not
yet exercised its Chevron discretion to interpret the statute.” Negusie v. Holder,
129 S. Ct. 1159, 1167 (2009). In such a situation, the Supreme Court has held that
“the proper course, except in rare circumstances, is to remand to the agency for
additional investigation or explanation.” Id. (internal quotation marks and citations
omitted).
Consequently, we GRANT the petition for review, VACATE the order of
the BIA, and REMAND the case to the BIA for a three-judge panel to determine
whether Gomez should be extended to circumstances like those in this case.

-- 3 of 3 --