Avalos Gurrola v. Ashcroft

MEMORANDUM **

Sergio Avalos Gurrola, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) summary affirmance of an immigration judge’s (“IJ”) denial of his application for cancellation of removal. We vacate and remand the petition.

The IJ denied the application on two independent grounds: (1) that Avalos Gurrola failed to establish that he was physically present in the United States for a continuous period of not less than ten years immediately preceding the date of his application; and (2) that Avalos Gurrola failed to establish that his removal would result in exceptional or extremely unusual hardship to his United States citizen son.

We have jurisdiction to review whether an alien has met the continuous physical presence requirement, Falcon Carriche v. Ashcroft, 350 F.3d 845, 853 (9th Cir.2003), but we do not have jurisdiction to review whether an alien has satisfied the hardship requirement, which rests in the discretion of the agency. 8 U.S.C. § 1252 (a)(2)(B)(i); Romero-Torres v. Ashcroft, 327 F.3d 887 (9th Cir.2003).

*370 Because the BIA affirmed without opinion, we have no way of knowing on which ground or grounds the BIA…