Jose Sandoval v. Jefferson Sessions

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NOT FOR PUBLICATION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.

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 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

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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.