NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 6 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT CHRISTIAN VLADAMIR GONZALEZ- No. 17-71455 MEJIA, aka Cristian Vladamir Gonzalez- Mejia Agency No. A072-312-734 Petitioner, MEMORANDUM* v. MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted May 14, 2021 Pasadena, California Before: R. NELSON and LEE, Circuit Judges, and STEIN,** District Judge. Christian Vladamir Gonzalez-Mejia, a native and citizen of Mexico, petitions for review of a Board of Immigration Appeals (“BIA”) order, on remand from this court, dismissing his appeal from an immigration judge’s (“IJ”) denial of * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Sidney H. Stein, United States District Judge for the Southern District of New York, sitting by designation. his application for relief from removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We grant the petition for review and remand for further proceedings. Familiarity with the facts and procedural history is assumed. Gonzalez- Mejia contends, once again, that the agency erroneously required him to prove his eligibility for a waiver of inadmissibility pursuant to 8 U.S.C. § 1182(h) (“212(h) waiver”) “clearly and beyond doubt,” when the appropriate standard of proof is a preponderance of the evidence. See 8 U.S.C. § 1229a(c)(4)(A); 8 C.F.R. § 1240.8(d). This court previously remanded to the BIA to consider this argument in the first instance, after the BIA failed to address it on direct appeal. See Gonzalez- Mejia v. Lynch, 668 F. App’x 705, 706 (9th Cir. 2016) (“[T]he BIA [is] not free to ignore arguments raised by a petitioner.” (quoting Sagaydak v. Gonzales, 405 F.3d 1035, 1040 (9th Cir. 2005))). On remand, the agency recognized that an alien must prove his eligibility for a 212(h) waiver by only a preponderance of the evidence. See 8 C.F.R. § 1240.8(d); 8 U.S.C. § 1229a(c)(4)(A). Nonetheless, the BIA affirmed the IJ, as it found “no support in the record for respondent’s assertion that we or the Immigration Judge applied a ‘clearly and beyond doubt’ standard of proof when evaluating his eligibility for a section 212(h) waiver.” According to the BIA, the agency applied the correct preponderance standard in the first instance, and so there was no error of law to correct. 2 But saying something does not make it so. The record here plainly demonstrates that the IJ, and the BIA on direct appeal, required Gonzalez-Mejia to prove his 212(h) waiver eligibility “clearly and beyond doubt.” Indeed, directly after citing 8 U.S.C. § 1229a(c)(2)’s “clearly and beyond doubt” standard, the IJ found that “[n]o waiver under § 212(h) is available” because Gonzalez-Mejia’s “contradictory testimonies” regarding his past marijuana use “have not removed doubt; they have instilled it.” On appeal, the BIA affirmed the IJ’s determination that this “conflicting evidence” prevented Gonzalez-Mejia from carrying his “clearly and beyond doubt” burden. By …
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