Eros Baca v. Eric Holder, Jr.

MEMORANDUM

Eros Baca petitions for review of agency decisions ordering him removed, denying his application for cancellation of removal, and denying his motion to reopen. We grant the petition and remand.

The immigration judge (IJ) pretermitted Baca’s application for cancellation of removal on the ground that he had committed a crime involving moral turpitude, which rendered him ineligible for cancellation under 8 U.S.C. § 1229b(b)(l)(C). The IJ did not consider or determine whether Baca was ineligible for cancellation of removal on any other ground. Baca appealed to the Board of Immigration Appeals (BIA), and both his briefing and the government’s concerned only whether his crime was one involving moral turpitude. The BIA nevertheless affirmed the IJ’s decision to pretermit cancellation of removal on the ground that Baca lacked a qualifying relative, as required by 8 U.S.C. § 1229b(b)(l)(D). But the IJ had taken no evidence on whether Baca had a qualifying relative, and the BIA is not permitted to engage in such fact-finding. 8 C.F.R. § 1003.1 (d)(3)(iv); see Brezilien v. Holder, 569 F.3d 403 , 412 n. 3 (9th Cir.2009). The BIA’s sua sponte decision to resolve the appeal on this…