Israel Charco-Silva v. Eric H. Holder Jr

MEMORANDUM

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.

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…