FILED
NOT FOR PUBLICATION
AUG 18 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE ROBERTO SANDOVAL, No. 13-73009
Petitioner, Agency No. A090-518-367
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted July 12, 2017
Pasadena, California
Before: REINHARDT, FERNANDEZ, and WARDLAW, Circuit Judges.
Jose Roberto Sandoval, also known as Mario Godoy Dorado, a native and
citizen of Mexico, petitions for review of the Board of Immigration Appeals’
(“BIA”) dismissal of his appeal of an immigration judge’s (“IJ”) decision finding
him statutorily ineligible for cancellation of removal. We have jurisdiction
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
pursuant to 8 U.S.C. § 1252, and we grant the petition for review, vacate the
decision below, and remand to the BIA for reconsideration in light of Maslenjak v.
United States, __ U.S. __, 137 S. Ct. 1918 (2017).
The BIA concluded that Sandoval had not been “lawfully admitted for
permanent residence” within the meaning of 8 U.S.C. § 1229b(a)(1), because he
adjusted status under an alias. Sandoval credibly testified that he used a false birth
certificate as an identification document when he applied for lawful permanent
resident (“LPR”) status in 1990 because he had difficulty obtaining his own birth
certificate from Mexico. The IJ found that there was “nothing to indicate that
[Sandoval] wouldn’t have qualified [for permanent residence] under his own
name,” and the BIA agreed that it was “possible that [Sandoval was] otherwise . . .
eligible to adjust his status.”
We agree that under the available evidence, Sandoval was likely eligible to
adjust status under his own name. On that basis, we distinguish Kyong Ho Shin v.
Holder, 607 F.3d 1213 (9th Cir. 2010), Segura v. Holder, 605 F.3d 1063 (9th Cir.
2010), and Monet v. INS, 791 F.2d 752 (9th Cir. 1986), where in each case we
specifically found that the noncitizens seeking relief were not, at the time of their
admission, otherwise eligible to obtain LPR status.
2
In 2017, the Supreme Court decided Maslenjak v. United States, where it
held that to convict a person under 18 U.S.C. § 1425(a), which makes it a crime to
knowingly procure naturalization contrary to law,
the Government must establish that an illegal act by the defendant
played some role in her acquisition of citizenship. When the illegal
act is a false statement, that means demonstrating that the defendant
lied about facts that would have mattered to an immigration official,
because they would have justified denying naturalization or would
predictably have led to other facts warranting the result.
Maslenjak, __ U.S. at __, 137 S. Ct. at 1923 (emphasis added).
Otherwise put, there must be a causal nexus between the false statement and the
grant of naturalization.
The Supreme Court further held,
Even when the Government can make its two-part showing, however,
the defendant may be able to overcome it. Section 1425(a) is not a
tool of denaturalizing people who, the available evidence indicates,
were actually qualified for the citizenship they obtained. . . . We have
never read a statute to strip citizenship from someone who met the
legal criteria for acquiring it. . . . Whatever the Government shows
with respect to a thwarted investigation, qualification for citizenship is
a complete defense to a prosecution brought under § 1425(a).
Id., __ U.S. at __, 137 S. Ct. at 1930.
The Court in Maslenjak interpreted a different statute than the one at issue
here, but its holding nevertheless bears upon our analysis. First, Maslenjak
suggests that falsehoods that do not otherwise affect an applicant’s substantive
3
legal eligibility for permanent residence do not justify concluding that the applicant
was not “lawfully admitted for permanent residence” within the meaning of 8
U.S.C. § 1229b(a)(1). Second, Maslenjak suggests that substantive qualification
for LPR status is a complete defense to the allegation that one was not “lawfully
admitted for permanent residence.”
Accordingly, we remand to the BIA to consider in the first instance whether,
in light of Maslenjak, a noncitizen is “lawfully admitted for permanent residence,”
8 U.S.C. § 1229b(a)(1), as long as he is substantively qualified for admission as an
LPR at the time he applies for that status, regardless of any misrepresentations that
would not “have justified denying [permanent resident status] or would predictably
have led to other facts warranting [that] result.” Maslenjak, __ U.S. at __, 137 S.
Ct. at 1923. If the BIA adopts this interpretation of 8 U.S.C. § 1229b(a)(1)’s
requirement of lawful admission for permanent residence, then it should also
decide whether Sandoval’s submission of someone else’s birth certificate rendered
him substantively unqualified for admission as an LPR. The panel will retain
jurisdiction over this petition.
PETITION GRANTED; VACATED AND REMANDED.
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FILED
Sandoval v. Sessions, No. 13-73009
AUG 18 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FERNANDEZ, Circuit Judge, concurring:
I concur in the result only. While I agree that the BIA should consider the
effect of Maslenjak v. United States, __ U.S. __, 137 S. Ct. 1918 (2017) on this
case, I see no reason to say more than that. Moreover, I see no reason to retain
jurisdiction over the case.