Mariscal Luna v. Gonzales
Opinion
Lead Opinion
MEMORANDUM **
Gregorio Mariscal Luna (“Mariscal”) appeals from a decision of the Board of Immigration Appeals (“BIA”) affirming without opinion the decision of an immigration judge (“IJ”) that Mariscal was not eligible for cancellation of removal under 8 U.S.C. § 1229b. The facts and procedural history are repeated herein only as necessary. Because the BIA erred in not following or acknowledging its own binding precedent, we grant the petition for review and remand to the BIA with instructions to reconsider the case in light of the BIA’s decision in In re Ortega-Cabrera, 23 I. & N. Dec. 793 (BIA 2005).
On June 2, 2004, the IJ found that Mariscal was statutorily ineligible for cancellation of removal because he could not satisfy the good moral character requirement of 8 U.S.C. § 1229b(b)(l)(B), because a $400 payment to his wife in 1990 to assist her in returning to the United States constituted alien smuggling. The IJ reasoned that such an act fell within the relevant time period for purposes of § 1229b(b)(l)(B) because the act was performed within 10 years of the service of a Notice to Appear on Mariscal in February 1998. Mariscal appealed to the BIA.