NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 25 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT WENJIN LIANG, No. 21-70736 Petitioner, Agency No. A205-172-929 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted May 12, 2022 Pasadena, California Before: WATFORD and FRIEDLAND, Circuit Judges, and AMON,** District Judge. Wenjin Liang petitions for review of an order of the Board of Immigration Appeals (BIA) denying his motion to terminate proceedings and affirming the immigration judge’s decision denying his motion to reopen his in absentia removal * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Carol Bagley Amon, United States District Judge for the Eastern District of New York, sitting by designation. Page 2 of 4 order. We grant the petition, vacate the removal order, and remand to the agency with instructions to grant Liang’s motion to terminate proceedings. 1. At Liang’s in absentia removal hearing, the government failed to carry its “heavy burden” of proving that Liang was removable as charged by “clear, unequivocal, and convincing evidence.” Cortez-Acosta v. I.N.S., 234 F.3d 476, 481 (9th Cir. 2000) (per curiam) (citations omitted); see 8 U.S.C. § 1229a(b)(5)(A). The government submitted three items of evidence at Liang’s removal hearing: the notice to appear, a subsequent notice of hearing, and Liang’s 2012 asylum application. To support the charge of removability, the government relies here only on the asylum application, in which Liang did not indicate that he was currently attending Pacific States University in accordance with the terms of his student visa. But in the absence of other substantive evidence, the government cannot rely “solely upon the adverse inference drawn from . . . silence” to satisfy its burden of proof. Urooj v. Holder, 734 F.3d 1075, 1078 (9th Cir. 2013) (alteration in original) (citation omitted). This is particularly true in this case, as an asylum application is “not designed to elicit” information about current school attendance. See Bassene v. Holder, 737 F.3d 530, 536 (9th Cir. 2013) (rejecting as unsupported an adverse inference predicated on petitioner’s omission, from his citizenship application, of details of past persecution that the citizenship application was not designed to elicit). No reasonable adjudicator could find that Page 3 of 4 the government carried its burden to establish removability when it relied solely on a single omission from an application designed for an entirely different purpose. The BIA reached a contrary conclusion only by erroneously placing the burden on Liang to prove that he was not removable as charged. The government does not defend the BIA’s decision, but instead argues that we should remand the case for the BIA to reconsider Liang’s argument that the government did not prove removability. A remand would not be proper here. Counsel for the government conceded at oral argument that the government would be precluded from …
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