NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
JUL 21 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
ALAA GHASSOUB OBEID, No. 13-70693
Petitioner, Agency No. A095-282-938
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted July 5, 2016
San Francisco, California
Before: BERZON, and N.R. SMITH, Circuit Judges, and ZOUHARY,** District
Judge.
In 2004, after being charged with removability, petitioner Alaa Obeid
applied for adjustment of status to that of a person admitted for lawful permanent
residence on the basis of his marriage to a U.S. citizen. See 8 U.S.C. § 1255(a).
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
Obeid had been indicted for conspiracy to commit money laundering, but the
indictment was dismissed as part of a plea agreement. An immigration judge (“IJ”)
ruled, on the basis of the indictment, that Obeid was inadmissible — and thus
ineligible to adjust his status — under 8 U.S.C. § 1182(a)(2)(I). The Board of
Immigration Appeals (“BIA”) affirmed, concluding that Obeid was an “aider or
assister” of money laundering under 8 U.S.C. § 1182(a)(2)(I)(ii). After this court
granted a petition for review, Obeid v. Holder, 484 F. App'x 189, 191 (9th Cir.
2012), the BIA again affirmed, holding that there was “reason to believe” that
Obeid had engaged in money laundering under 8 U.S.C. § 1182(a)(2)(I)(i). Obeid
challenges that determination. We grant the petition.
1. The BIA erred in relying on the purported testimony of Detective
O’Brien that the indictment was not dismissed for lack of probable cause. The
BIA misstates the record; in fact, Detective O’Brien did not testify at all about the
government’s reasons for dismissing the indictment.
2. The BIA further erred in determining that the indictment, standing alone,
constituted “reason to believe” that Obeid engaged in money laundering.1 The
indictment charged Obeid only with conspiracy to commit money laundering.
1
The government conceded at oral argument that the BIA relied solely on
the dismissed indictment.
2
Even assuming that participation in a conspiracy to commit money laundering
constitutes “reason to believe” that the participant in fact engaged in money
laundering, the evidence in this case falls short. A dismissed indictment, without
more, does not constitute “reason to believe” that the defendant committed the
crime charged.
3. We do not decide whether Obeid’s divorce during the course of these
proceedings automatically invalidates his application for adjustment of status under
8 C.F.R. § 205.1(a)(3)(i)(D). “Generally speaking, a court of appeals should
remand a case to an agency for decision of a matter that statutes place primarily in
agency hands.” INS v. Orlando Ventura, 537 U.S. 12, 16 (2002); see also
Gonzales v. Thomas, 547 U.S. 183 (2006). The BIA is in the best position to
determine in the first instance the applicability of its own regulation.
GRANTED.
3