                                                                          FILED
                            NOT FOR PUBLICATION                             JUL 28 2015

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


JORGE PEREZ-RODRIGUEZ,                 )      No. 12-70932
                                       )
             Petitioner,               )      Agency No. A026-357-218
                                       )
             v.                        )      MEMORANDUM*
                                       )
LORETTA E. LYNCH, Attorney             )
General,                               )
                                       )
             Respondent.               )
                                       )

                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                              Submitted July 7, 2015**
                               Pasadena, California

Before: REINHARDT, FERNANDEZ, and CLIFTON, Circuit Judges.

      Jorge Perez-Rodriguez petitions for review of the Board of Immigration

Appeals’ (“BIA”) determination that he is removable for, among other things,

commission of immigration willful misrepresentation. See 8 U.S.C.

      *
       This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      **
      The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
§ 1182(a)(6)(C)(i).1 We grant the petition and remand.

      Perez argues that the record was insufficient to support the determination by

clear and convincing evidence2 that he had, in fact, willfully misrepresented3 that

he had an approved petition for a special immigrant visa4 when he applied to the

United States Citizenship and Immigration Services (“USCIS”) for adjustment of

status.5 We agree. We must affirm the ruling of the Immigration Judge (“IJ”) and

the BIA unless “a reasonable factfinder would have to conclude”6 that the evidence

could not support that determination by clear and convincing evidence.7 Here that

evidentiary support is lacking.

      The government had to demonstrate by clear and convincing evidence that


      1
      The parties and the agency often refer to this provision generally as
immigration fraud. However, for clarity we will use willful misrepresentation,
which was the actual basis for the decision.
      2
        See Hernandez-Guadarrama v. Ashcroft, 394 F.3d 674, 679 (9th Cir. 2005);
see also Nakamoto v. Ashcroft, 363 F.3d 874, 881–82 (9th Cir. 2004).
      3
          See 8 U.S.C. § 1182(a)(6)(C)(i).
      4
       See id. §§ 1101(a)(27)(C), 1153(b)(4); see also Ruiz-Diaz v. United States,
618 F.3d 1055, 1058–59 (9th Cir. 2010).
      5
          See 8 U.S.C. § 1255(a).
      6
       INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S. Ct. 812, 815, 117 L. Ed.
2d 38 (1992).
      7
          See 8 U.S.C. § 1229a(c)(3)(A); Nakamoto, 363 F.3d at 882.

                                             2
the submission of the allegedly fraudulent notice of approval of a special

immigrant visa constituted a “misrepresentation [by Perez that] was deliberate and

voluntary.” Forbes v. INS, 48 F.3d 439, 442 (9th Cir. 1995). Here the only

material evidence in the record is a denial letter from the USCIS to Perez which

attaches a document explaining the denial. While that did constitute admissible

evidence,8 it is far from the clear and convincing evidence that was required. It

does not point to any underlying facts to demonstrate that Perez had any reason to

know that the document was fraudulent, or for that matter what drove the decision

that the document was fraudulent. A reasonable factfinder could not find those

conclusory statements to be sufficiently clear and convincing evidence to justify

removal of Perez for making a deliberate and voluntary misrepresentation; the

conclusory USCIS document was too thin a reed to bear that much weight.

      The willful misrepresentation ground is the sole issue we reach. We

therefore vacate that portion of the removal decision and remand to the BIA so that

it can consider the remaining issues free from the effects of that error. See

Gonzales v. Thomas, 547 U.S. 183, 185–87, 126 S. Ct. 1613, 1614–15, 164 L. Ed.


      8
       Despite Perez’s arguments to the contrary, the determination by the USCIS
was admissible evidence. See Fed. R. Evid. 803(8); see also Espinoza v. INS, 45
F.3d 308, 310–11 (9th Cir. 1995); cf. Beech Aircraft Corp. v. Rainey, 488 U.S.
153, 161–63, 170, 109 S. Ct. 439, 446, 450, 102 L. Ed. 2d 445 (1988).

                                          3
2d 358 (2006) (per curiam). In so doing, we have noted that the administrative

proceedings up to this point do not appear to have focused upon whether Perez

could sustain his burden to demonstrate that he is eligible to be considered for

adjustment of status or other relief. Thus, we make it clear that we do not intend to

preclude the BIA from taking other steps, such as a remand to the IJ, so that Perez

can attempt to make that demonstration.

      Petition GRANTED, and REMANDED for further proceedings.




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