NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHRISTIAN VLADAMIR GONZALEZMEJIA, aka Cristian Vladamir GonzalezMejia

Petitioner, 

 v. 

MERRICK B. GARLAND, Attorney 

General, 

Respondent.

No. 17-71455 

Agency No. A072-312-734 

MEMORANDUM*

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.

FILED

AUG 6 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

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. GonzalezMejia 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 GonzalezMejia 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. 
3 

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 holding Gonzalez-Mejia to a standard of 

“remov[ing] doubt” in order to qualify for a 212(h) waiver, the agency indeed 

committed error.1

The BIA cannot cure this error with a bare conclusory assertion to the 

contrary. See SEC v. Chenery Corp., 318 U.S. 80, 87 (1943) (“The grounds upon 

which an administrative order must be judged are those upon which the record 

1 We recently held that 8 U.S.C. § 1229a(c)(2)’s “clearly and beyond doubt” 

standard is never applicable to aliens like Gonzalez-Mejia, who are seeking 

adjustment of status as a form of relief from removal after a prior lawful 

admission. See Romero v. Garland, No. 17-70534, 2021 WL 3280786, at *3 (9th 

Cir. Aug. 2, 2021). Since such aliens had previously been admitted to the United 

States, we held that they cannot be considered “applicants for admission,” as 

required to trigger 8 U.S.C. § 1229a(c)(2)’s heightened burden. Instead, in these 

circumstances, the “preponderance of the evidence” standard set forth in 8 C.F.R. § 

1240.8(d) applies to the questions of both an alien’s admissibility and his eligibility 

for a waiver of inadmissibility. 
4 

discloses that its action was based.”). Nor may we affirm based on the BIA’s 

subsequent statement that “as the facts found by the Immigration Judge establish 

that the respondent admitted committing more than a ‘single offense’ of marijuana 

use . . . it follows that the respondent did not carry his burden of proving eligibility 

for section 212(h) relief by a preponderance of the evidence.” 

First of all, it is not clear that the IJ made any such factual finding. True, the 

IJ’s opinion casts doubt on the credibility of Gonzalez-Mejia’s post-hearing 

affidavit attesting to a single admissible marijuana offense.2 However, the IJ then 

concluded that this later testimony “basically leaves the court not knowing what to 

believe,” and therefore did not meet the high bar of “remov[ing] doubt.” It thus 

appears that the IJ found only that Gonzalez-Mejia failed to carry his “clearly and 

beyond doubt” burden of proof, and not that he had in fact committed multiple 

marijuana offenses. Cf. Meihua Huang v. Mukasey, 520 F.3d 1006, 1008 (9th Cir. 

2008) (“The BIA should not have approved the IJ’s ‘finding’ because the IJ made 

none.”). 

Moreover, even if the IJ did make such a factual finding, the BIA’s 

refusal to engage with the record cannot stand. The agency’s conclusory denial 

that it committed error, in the face of clear evidence to the contrary, leaves this 

2 This affidavit, if believed, would have rendered Gonzalez-Mejia inadmissible but 

eligible for a 212(h) waiver. See 8 U.S.C. § 1182(h).
5 

Court to scrutinize the language and reasoning of the IJ’s opinion in the first 

instance, a role assigned by Congress to the BIA. See 8 C.F.R. § 1003.1(b). This 

Court does not “countenance a [BIA] decision that leaves us to speculate based on 

an incomplete analysis.” Su Hwa She v. Holder, 629 F.3d 958, 963-64 (9th Cir. 

2010). 

We thus remand to the agency to apply the appropriate standard of proof. 

Due to the lack of clarity as to the IJ’s factual findings, and in order to avoid a third

appeal of this near-decade-old IJ opinion, “the Board may remand the matter to the 

IJ to conduct a ‘full and fair’ inquiry into” Gonzalez-Mejia’s admissibility and 

212(h) waiver eligibility under a “preponderance of the evidence” standard. Singh 

v. Gonzales, 491 F.3d 1019, 1027 (9th Cir. 2007), superseded by statute on other 

grounds as stated in Dai v. Sessions, 884 F.3d 858, 868 n.8 (9th Cir. 2018)

(quoting Mendoza Manimbao v. Ashcroft, 329 F.3d 655, 661 (9th Cir. 2003)). 

“Because the BIA fundamentally erred in applying an improperly high burden of 

proof, we need not reach the other issues raised” by Gonzalez-Mejia. Romero, 

2021 WL 3280786, at *3.

PETITION FOR REVIEW GRANTED AND REMANDED.