FILED

NOT FOR PUBLICATION

DEC 07 2017

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SANTIAGO MARTINEZ, No. 14-72593

Petitioner, Agency No. A070-063-758

v.

MEMORANDUM*

JEFFERSON B. SESSIONS III, Attorney General,

Respondent.

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

Submitted December 5, 2017** Pasadena, California

Before: D.W. NELSON and REINHARDT, Circuit Judges, and STEEH,*** District Judge.

* 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. See Fed. R. App. P. 34(a)(2). *** The Honorable George Caram Steeh III, United States District Judge for the Eastern District of Michigan, sitting by designation. Santiago Martinez (“Petitioner” or “Martinez”), a native and citizen of

Guatemala, petitions for review of the Board of Immigration Appeals’s (“BIA”)

denial of his claim for special rule cancellation of removal under Section 203 of the

Nicaraguan Adjustment and Central American Relief Act (“NACARA”). We have

jurisdiction under 8 U.S.C. § 1252. We review de novo questions of law, which

include the “application of law to undisputed facts.” Barrios v. Holder, 581 F.3d

849, 857 (9th Cir. 2009) (citations and internal quotation marks omitted). “Factual

findings are reviewed for substantial evidence.” Id. at 854 (citation omitted). We

GRANT the petition for review and REMAND.

1. Under Section 309(f) of the Illegal Immigration and Immigrant

Responsibility Act (“IIRIRA”), as amended by Section 203 of NACARA, the

Attorney General has discretion to “cancel removal of, and adjust to the status of

an alien lawfully admitted for permanent residence” an alien who, among other

things, demonstrates he “has been a person of good moral character” during the “7

years immediately preceding the date of [his] [NACARA] application.” IIRIRA §

309(f), as amended by NACARA § 203. “No person ‘who has given false

testimony for the purpose of obtaining any [immigration] benefits’ during the

relevant period for which good moral character is required shall be found to be a

2 person of good moral character.” Aragon-Salazar v. Holder, 769 F.3d 699,

701–02 (9th Cir. 2014) (citing 8 U.S.C. § 1101(f)(6)).

The only issue we must reach is whether it was proper for the IJ, in assessing

Martinez’s “good moral character” under NACARA, to consider the allegedly false

testimony he gave at hearings conducted in 2003, 2007, and 2011, when he filed

his initial NACARA application in 2000. Petitioner alleges the seven-year period

for showing “good moral character” ended on November 6, 2000, when he filed his

initial application. The government contends the seven-year period ended on May

25, 2010, when he filed his updated application.

In Aragon-Salazar, this Court held “the seven-year period during which

good moral character is required under NACARA ends on the date of the filing of

the application.” 769 F.3d at 701 (emphasis added). “[U]pdates to [the] initial

application” do not extend the period under which a court assesses good moral

character. Id. at 706–07. Here, Martinez filed his initial application on November

6, 2000, and he must therefore “show good moral character [during] the seven-year

period preceding [this date].” Id. at 707. “[Martinez’s] purportedly false

statements were given [in 2003, 2007, and 2011].” Id. “[All] of these dates are

outside the relevant time period during which good moral character is required

3 under NACARA [Section] 203,” and hence, the BIA erred in affirming the IJ’s

denial of Martinez’s NACARA application on this basis. Id.

2. The government’s contentions Martinez’s initial application was

withdrawn, and that he filed a new application on May 25, 2010, are meritless

under the circumstances of this case.

First, neither the IJ nor the BIA made any findings as to whether

Petitioner—or someone else—withdrew the initial application. Indeed, the BIA

appears to have held the seven-year period for assessing good moral character

ended in 2011, when the IJ issued her decision on the application, not on the dates

Petitioner filed his initial and updated applications. Such a finding, however, runs

contrary to Aragon-Salazar, where this Court held a NACARA applicant need not

“show good moral character up to the point [of] a final administrative decision”

because the application is not “continuing” in nature. See id. at 702 (citation

omitted).

Even if the immigration judge or the BIA had made a finding the application

had been withdrawn, it was not supported by substantial evidence. Barrios, 581

F.3d at 854 (citation omitted). Here, the BIA sua sponte reopened this case on

December 29, 2009, based on the immigration judge’s failure to consider

Martinez’s initial NACARA application, filed on November 6, 2000. If the

4 application had been withdrawn, there would have been no need for the BIA to

remand the case to the immigration judge to consider the application in the first

instance. On remand, the immigration judge permitted Martinez to file an

“amended” NACARA application, and Martinez filed his “UPDATED . . .

APPLICATION FOR . . . SPECIAL RULE CANCELLATION OF REMOVAL”

on May 25, 2010. Finally, Martinez’s counsel never conceded the accuracy of the

government lawyer’s claim that the original application was withdrawn, and the

government introduced no evidence to support that claim. Hence, under the

circumstances of this case, the facts establish Petitioner filed an update to his initial

application, not a new application.

Given only the initial application date, and not the date of any update,

controls when the seven-year period for demonstrating good moral character ends,

the time period ended in this case on November 6, 2000. See Aragon-Salazar, 769

F.3d at 701, 706–07.

PETITION FOR REVIEW GRANTED; REMANDED.

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