NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________ No. 17-3433 ___________ JARVIN ORLANDO LOPEZ, a/k/a JARVIN ORLANDO CRUZ-LOPEZ, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA ____________________________________ On Petition for Review of a Decision of the United States Department of Justice Board of Immigration Appeals (BIA-1: A094-481-777) Immigration Judge: Honorable Walter A. Durling ____________________________________ Argued: September 7, 2018 Before: HARDIMAN, KRAUSE, and BIBAS, Circuit Judges (Opinion filed: December 21, 2018) Sandra L. Greene [Argued] Greene Fitzgerald Advocates and Consultants 2575 Eastern Boulevard Suite 208 York, PA 17402 Counsel for Petitioner James A. Hurley [Argued] Kiley Kane Chad A. Readler United States Department of Justice Office of Immigration Litigation Room 5009, P.O. Box 878 Ben Franklin Station Washington, DC 20044 Counsel for Respondent OPINION* KRAUSE, Circuit Judge. Jarvin Orlando Lopez, an alien from El Salvador, petitions for review of two orders of the Board of Immigration Appeals (BIA) affirming the rejection of his applications for withholding of removal, for relief under the Convention Against Torture (CAT), and for cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act (NACARA). We will deny the petition as to withholding of removal and CAT relief, but we will grant it and remand to the BIA for further consideration and explanation as to relief under NACARA. I. Background Lopez applied for relief from deportation on several grounds. In one order dated * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 2 March 3, 2017, the BIA affirmed the Immigration Judge’s rejections of Lopez’s applications for withholding of removal and CAT relief. In a second order issued October 10, 2017, the BIA also affirmed the rejection of his application for cancellation of removal under Section 203(b) of NACARA, Pub. L. No. 105-100, 111 Stat. 2160, 2198–2201 (1997), concluding that Lopez was subject to NACARA’s heightened eligibility criteria that apply to aliens who are “inadmissible under Section 212(a)(2)” of the Immigration and Nationality Act (INA) as the result of a controlled-substance conviction, 8 C.F.R. § 1240.66(c)(1). Lopez urged that if he were allowed to seek a concurrent waiver of inadmissibility pursuant to Section 212(h) of the INA, he then would satisfy the less demanding criteria that apply to aliens who are not inadmissible under Section 212(a)(2). But the BIA did not acknowledge or address the effect of a concurrent waiver request on Lopez’s NACARA eligibility. Instead, it offered only the cryptic remark that “[e]ven assuming [Lopez] was entitled to a waiver under section 212(h) . . . , [he] has not satisfied his burden for relief under NACARA.” A.R. 8. II. Discussion Lopez petitions for review of both BIA orders. For the reasons set forth below, we will deny the petition for review as to the first order (concerning withholding of removal and CAT relief), but we will grant it and remand for a more reasoned decision from the BIA under the Chenery doctrine as to the second (concerning ...
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