Christian Gonzalez-Mejia v. Loretta E. Lynch

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NOT FOR PUBLICATION AUG 24 2016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