                              NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                              FOR THE NINTH CIRCUIT
                                                                            JUL 21 2016
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
ALAA GHASSOUB OBEID,                              No.   13-70693

              Petitioner,                         Agency No. A095-282-938

 v.
                                                  MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

              Respondent.


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

                            Argued and Submitted July 5, 2016
                                San Francisco, California

Before: BERZON, and N.R. SMITH, Circuit Judges, and ZOUHARY,** District
Judge.

      In 2004, after being charged with removability, petitioner Alaa Obeid

applied for adjustment of status to that of a person admitted for lawful permanent

residence on the basis of his marriage to a U.S. citizen. See 8 U.S.C. § 1255(a).


         *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
         **
            The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
Obeid had been indicted for conspiracy to commit money laundering, but the

indictment was dismissed as part of a plea agreement. An immigration judge (“IJ”)

ruled, on the basis of the indictment, that Obeid was inadmissible — and thus

ineligible to adjust his status — under 8 U.S.C. § 1182(a)(2)(I). The Board of

Immigration Appeals (“BIA”) affirmed, concluding that Obeid was an “aider or

assister” of money laundering under 8 U.S.C. § 1182(a)(2)(I)(ii). After this court

granted a petition for review, Obeid v. Holder, 484 F. App'x 189, 191 (9th Cir.

2012), the BIA again affirmed, holding that there was “reason to believe” that

Obeid had engaged in money laundering under 8 U.S.C. § 1182(a)(2)(I)(i). Obeid

challenges that determination. We grant the petition.

      1. The BIA erred in relying on the purported testimony of Detective

O’Brien that the indictment was not dismissed for lack of probable cause. The

BIA misstates the record; in fact, Detective O’Brien did not testify at all about the

government’s reasons for dismissing the indictment.

      2. The BIA further erred in determining that the indictment, standing alone,

constituted “reason to believe” that Obeid engaged in money laundering.1 The

indictment charged Obeid only with conspiracy to commit money laundering.



      1
        The government conceded at oral argument that the BIA relied solely on
the dismissed indictment.
                                           2
Even assuming that participation in a conspiracy to commit money laundering

constitutes “reason to believe” that the participant in fact engaged in money

laundering, the evidence in this case falls short. A dismissed indictment, without

more, does not constitute “reason to believe” that the defendant committed the

crime charged.

      3. We do not decide whether Obeid’s divorce during the course of these

proceedings automatically invalidates his application for adjustment of status under

8 C.F.R. § 205.1(a)(3)(i)(D). “Generally speaking, a court of appeals should

remand a case to an agency for decision of a matter that statutes place primarily in

agency hands.” INS v. Orlando Ventura, 537 U.S. 12, 16 (2002); see also

Gonzales v. Thomas, 547 U.S. 183 (2006). The BIA is in the best position to

determine in the first instance the applicability of its own regulation.

      GRANTED.




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