Felipe Olimpo Godinez-Tejeda and his wife Margarita Godinez-Medina, natives and citizens of Mexico, petition pro se for review of the Board of Immigration Appeals' ("BIA") order adopting and affirming the decision of an immigration judge ("IJ") denying their applications for cancellation of removal. We have jurisdiction under 8 U.S.C. § 1252. We review questions of law de novo. Cabrera-Alvarez v. Gonzales, 423 F.3d 1006, 1009 (9th Cir. 2005). We grant the petition for review, and remand for further proceedings.
The agency concluded that Petitioners were statutorily ineligible for cancellation of removal based on Godinez-Medina's testimony that she and Godinez-Tejeda paid a smuggler to assist her and their infant son to enter the United States without inspection. The IJ, however, did not have the benefit of this court's decision in Moran v. Ashcroft, 395 F.3d 1089, 1093-94 (9th Cir. 2005) (cancellation of removal application not barred by alien smuggling provision where applicant assisted spouse, parent or son or daughter to enter the United States), and the BIA failed to apply it. In light of Moran, Petitioners remain eligible for cancellation of removal, and the agency improperly pretermitted their applications.
In accordance with INS v. Ventura, 537 U.S. 12, 16-17, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam), we remand for further proceedings consistent with this decision.
PETITION FOR REVIEW GRANTED; REMANDED.