NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 21 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT CESAR OMAR LOPEZ DUARTE, AKA No. 17-71087 Cesar A. Lopez, Agency No. A205-466-438 Petitioner, v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted October 6, 2020 Portland, Oregon Before: PAEZ and RAWLINSON, Circuit Judges, and PREGERSON,** District Judge. Dissent by Judge RAWLINSON Petitioner Cesar Omar Lopez Duarte, a former resident of San Francisco, petitions for review of the Board of Immigration Appeals (BIA)’s decision dismissing his appeal of the Immigration Judge (IJ)’s denial of his motion to * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Dean D. Pregerson, United States District Judge for the Central District of California, sitting by designation. suppress a Form I-213. We have jurisdiction under 8 U.S.C. § 1252(a). We review de novo questions of constitutional law. Khan v. Holder, 584 F.3d 773, 776 (9th Cir. 2009) (citing Tapia v. Gonzales, 430 F.3d 997, 999 (9th Cir. 2005)). For the reasons explained below, we grant the petition and remand for further proceedings. 1. The government contends that Lopez Duarte failed to exhaust his argument that the IJ’s reliance on a “US-VISIT” form violated his due process rights under the Fifth Amendment and 8 U.S.C. § 1229a, therefore limiting our jurisdiction on review. See 8 U.S.C. § 1252(d)(1). We disagree. To satisfy the exhaustion requirement in § 1252(d)(1), a party need only “put the BIA on notice” in his appeal from an IJ’s order. Diaz-Jimenez v. Sessions, 902 F.3d 955, 959 (9th Cir. 2018) (quoting Ren v. Holder, 648 F.3d 1079, 1083 (9th Cir. 2011)). Although a “‘petitioner cannot satisfy the exhaustion requirement by making a general challenge’ to the BIA’s decision, the petitioner ‘need not . . . raise the precise argument below.’” Id. at 960 (quoting Garcia v. Lynch, 786 F.3d 789, 793 (9th Cir. 2015) (per curiam)) (emphasis and alteration in original). Lopez Duarte argued to the BIA that the IJ failed to conduct an adequate factual inquiry into the origin of the information on the “US-VISIT” form and erred in making factual findings concerning the form that were not supported by the record. He also argued that evidence obtained in violation of due process and the agency’s own 2 regulations must be suppressed. Thus, Lopez Duarte “articulate[d] each essential part of the contention he now raises.” Garcia, 786 F.3d at 793. 2. The IJ’s reliance on the “US-VISIT” form to deny Lopez Duarte’s motion to suppress, without providing him an opportunity to confront and challenge the document, violated due process. See Grigoryan v. Barr, 959 F.3d 1233, 1240-41 (9th Cir. 2020). We have repeatedly held that individuals in removal proceedings must be provided a full and fair opportunity to confront evidence offered by the government. Id.; Bondarenko v. Holder, …
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