                                                                           FILED
                            NOT FOR PUBLICATION                             SEP 10 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



ALEJANDRO GARCIA-ANDRADE,                        No. 06-74443

              Petitioner,                        Agency No. A091-857-082

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



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

                               Argued May 6, 2008
                            Submitted September 8, 2010
                               Pasadena, California

Before: FISHER and PAEZ, Circuit Judges, and ROBART, District Judge.**


       Petitioner Alejandro Garcia-Andrade, a native and citizen of Mexico,

petitions for review of the Board of Immigration Appeals’ (BIA’s) order affirming




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable James L. Robart, United States District Judge for the
Western District of Washington, sitting by designation.
the Immigration Judge’s (IJ’s) denial of his applications for cancellation of

removal and voluntary departure.

      At his hearing before the IJ, Garcia-Andrade admitted that he had one

expunged drug conviction but then invoked his right to remain silent after the IJ

noted that the government might ask him about other drug use that could preclude

him from qualifying for relief. The IJ subsequently denied relief. The BIA

dismissed Garcia-Andrade’s appeal, explaining that Garcia-Andrade bore the

burden to prove his eligibility for relief and that he could not “meet his burden of

proof by remaining silent.”

      In support of its decision, the BIA did not cite any authority establishing that

a petitioner’s silence per se precludes him from demonstrating his eligibility for

relief. Rather, the BIA only cited authority noting that “an adverse inference may

indeed be drawn from a respondent’s silence in deportation proceedings” in some

instances. Matter of Guevara, 20 I. & N. Dec. 238, 241 (BIA 1991). We have not

found, and the government has not cited, any authority establishing that

documentary evidence alone can never satisfy an alien’s burden to establish his

eligibility for cancellation of removal or voluntary departure.

      In light of this dearth of authority and the BIA’s cryptic citation, we

recognize that the BIA’s decision can also be understood as denying relief on the


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ground that Garcia-Andrade’s limited testimony, along with the documentary

evidence that he submitted, failed to establish that he satisfied one or more of the

eligibility criteria for cancellation of removal or voluntary departure. We have

jurisdiction to review whether a petitioner has satisfied some eligibility criteria, but

not others. Compare Morales v. Gonzales, 478 F.3d 972, 978 (9th Cir. 2007)

(holding that we have jurisdiction to review whether a criminal conviction falls

within a particular statutory category); Lopez-Alvarado v. Ashcroft, 381 F.3d 847,

850–51 (9th Cir. 2004) (holding that we have jurisdiction to review a BIA

determination of continuous presence); and Gomez-Lopez v. Ashcroft, 393 F.3d

882, 884 (9th Cir. 2004) (holding that we retain jurisdiction to review whether an

alien per se lacks good moral character under 8 U.S.C. § 1101(f)), with Romero-

Torres v. Ashcroft, 327 F.3d 887, 888 (9th Cir. 2003) (holding that the

“‘exceptional and extremely unusual hardship’ determination is a subjective,

discretionary judgment that has been carved out of our appellate jurisdiction”); and

Kalaw v. INS, 133 F.3d 1147, 1151 (9th Cir. 1997) (holding that we lack

jurisdiction to review discretionary determinations that an alien lacks good moral

character). Because the BIA did not specify which eligibility criteria Garcia-

Andrade failed to establish, it is unclear whether we have jurisdiction to review its

decision. Where, as here, it is unclear whether the BIA based its decision on


                                           3
reviewable grounds, unreviewable grounds, or both, we must remand for the

agency to clarify that basis of its decision. See Lanza v. Ashcroft, 389 F.3d 917,

932 (9th Cir. 2004). We must remand without first deciding the reviewable

grounds because, were we to reverse the BIA’s ruling, our decision would become

an unconstitutional advisory opinion if the BIA subsequently clarified that it

denied relief on an unreviewable ground. See id. at 929–30.

      We note, however, that remand for clarification would not be necessary or

efficient if it were clear that we would affirm the BIA’s decision on the reviewable

ground. Such a disposition would not be advisory, and remanding in those

circumstances would waste agency resources. Here, however, it is far from clear

that we would affirm. First, as noted, it is unclear that a petitioner’s silence can per

se preclude him from establishing eligibility for relief.

      Second, it is not clear that the BIA could have properly denied relief on the

reviewable ground that Garcia-Andrade per se lacked good moral character under 8

U.S.C. § 1101(f). Although a petitioner generally bears the burden to establish his

eligibility for relief, 8 C.F.R. § 1240.8(d) suggests that a petitioner has the burden

to prove that “grounds for mandatory denial of the application for relief” do not

apply only if “the evidence indicates that one or more” such grounds may apply.

Because § 1101(f)’s command that certain categories of aliens shall be found to


                                           4
lack good moral character may constitute such a “ground[] for mandatory denial of

the application of relief,” a petitioner may not have the burden to prove that he falls

outside those categories unless and until the evidence indicates that he might fall

within one of them. Here, it is unclear whether the evidence suggests that any §

1101(f) category might apply to Garcia-Andrade. Although the BIA could

certainly draw an adverse inference from Garcia-Andrade’s silence, see United

States v. Solano-Godines, 120 F.3d 957, 962 (9th Cir. 1997), it is not clear that

Garcia-Andrade’s silence could support the inference that he fell within a per se

exclusion category, the most relevant one of which covers only persons “convicted

of, or who admit[] having committed, or who admit[] committing acts which

constitute the essential elements of” a controlled substance offense, rather than

persons who committed a controlled substances crime. 8 U.S.C. § 1182(a)(2)(A)(i)

(emphasis added); see id. § 1101(f) (referring to aliens described in 8 U.S.C. §

1182(a)(2)(A)).

       In light of these uncertainties, it is unclear whether we would affirm the

BIA’s decision on these reviewable grounds. We accordingly remand for the BIA

to clarify the basis of its decision.




PETITION FOR REVIEW GRANTED; REMANDED.


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