dissenting.
Ortega has the burden to prove his eligibility for relief under section 212(k). Thus, he must demonstrate he did not know and could not have known in the exercise of reasonable diligence of his sister’s fraud scheme which was the basis of his and his family’s admissibility into this country.
As with most fraud scams, there is no direct evidence of knowledge. But the IJ and Board found circumstantial evidence Ortega knew. The question is whether we are compelled to find otherwise. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992).
At the time of his illegal entry, he was 23 years old. He testified he did not know of the fraud. The IJ disbelieved him. That is evidence of the contrary: he did know of the fraud. Could the IJ and Board do so?
*596He was found to have misled a government agent about the names of his siblings. He denies he ever had the conversation. The IJ found he lied: he did have the conversation.
The IJ found this deceptiveness showed his knowledge of the nature of the immigration effort and that, at least after the conversation, he logically would have discussed it with his family. But Ortega lied about the conversation even happening. This led the IJ to find that Ortega either knew of his sister’s fraud or could reasonably have been expected to investigate further. The Board agreed.
Perhaps I might have seen it differently had I been the IJ or the Board, but I do not feel compelled to come to the opposite determination. Therefore, I would deny the petition.