CHRISTIAN GONZALEZ-MEJIA V. LORETTA E. LYNCH, No. 15-70611 (9th Cir. 2016)

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FILED AUG 24 2016 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT CHRISTIAN VLADAMIR GONZALEZMEJIA, AKA Cristian Vladamir Gonzalez-Mejia, No. 15-70611 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

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