FILED
NOT FOR PUBLICATION AUG 24 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRISTIAN VLADAMIR GONZALEZ- No. 15-70611
MEJIA, AKA Cristian Vladamir
Gonzalez-Mejia, Agency No. A072-312-734
Petitioner,
MEMORANDUM*
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 16, 2016**
Before: O’SCANNLAIN, LEAVY, and CLIFTON, Circuit Judges.
Christian Vladmir Gonzalez-Mejia, a native and citizen of Mexico, petitions
for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his
appeal from an immigration judge’s decision denying adjustment of status and a
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
waiver under 8 U.S.C. § 1182(h) (“212(h) waiver”). Our jurisdiction is governed
by 8 U.S.C. § 1252. We grant the petition for review, and remand.
Gonzalez-Mejia contended before the BIA, and now before this court, that
the agency erroneously applied the “clearly and beyond a doubt” standard of proof
in adjudicating his application for a 212(h) waiver of inadmissibility, when it
should have applied the “preponderance of the evidence” standard. Compare
Lopez-Vasquez v. Holder, 706 F.3d 1072, 1074,78 (9th Cir. 2013) (to establish
eligibility for adjustment of status, an alien must prove “‘clearly and beyond
doubt’” that he is not inadmissible (quoting 8 U.S.C. § 1229a(c)(2)), with 8 C.F.R.
§ 1240.8(d) (“If the evidence indicates that one or more of the grounds for
mandatory denial of the application for relief may apply, the alien shall have the
burden of proving by a preponderance of the evidence that such grounds do not
apply.”).
Because the BIA failed to address this contention, we remand for the BIA to
consider it in the first instance. See Sagaydak v. Gonzales, 405 F.3d 1035, 1040
(9th Cir. 2005) (“the BIA [is] not free to ignore arguments raised by a petitioner”).
In light of this disposition, we do not reach Gonzalez-Mejia’s remaining
contentions.
PETITION FOR REVIEW GRANTED; REMANDED.
2 15-70611