                             NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                              FILED
                             FOR THE NINTH CIRCUIT                               AUG 25 2011

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

FELIX MACADAEG EDRALIN; et al.,                  No. 07-72181

              Petitioners,                       Agency Nos. A045-476-297
                                                             A045-476-298
  v.                                                         A045-476-299
                                                             A045-476-300
ERIC H. HOLDER, Jr., Attorney General,                       A045-476-301

              Respondent.
                                                 MEMORANDUM*



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

                       Argued and Submitted March 18, 2011
                            San Francisco, California

Before: WALLACE, NOONAN, and CLIFTON, Circuit Judges.

       Petitioners seek review of the BIA’s denial of their request for a waiver of

inadmissibility under the Immigration and Nationality Act for failing to make a

reasonably diligent effort to ascertain their inadmissibility. INA § 212(k),




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
8 U.S.C. § 1182(k). We grant the petition for review and remand for

reconsideration.

      We have jurisdiction to review the reasonable diligence determination

required by INA § 212(k). Section 212(k) grants the Attorney General discretion to

grant or deny a waiver of inadmissibility when an applicant has met all of the

eligibility criteria. See Nakamoto v. Ashcroft, 363 F.3d 874, 880-81 (9th Cir. 2004)

(holding that the decision is “entirely discretionary” when the Attorney General

can deny relief, even if an alien satisfies the statutory requirements). While we are

unable to review entirely discretionary decisions under 8 U.S.C.

§ 1252(a)(2)(B)(ii), we have established that when the INA specifies that an

overall decision is discretionary, this court retains jurisdiction to review any non-

discretionary eligibility criteria involved in that decision. Kalaw v. INS, 133 F.3d

1146, 1150 (9th Cir. 1997). Whether an applicant exercised reasonable diligence in

ascertaining his inadmissibility under § 212(k) is such a non-discretionary

eligibility criterion. See Kyong Ho Shin v. Holder, 607 F.3d 1213, 1219 (9th Cir.

2010) (reviewing threshold eligibility requirements for a § 212(k) waiver).

Accordingly, we have jurisdiction to review that criterion.

      The § 212(k) waiver is available to persons whose immigrant visas were not

valid at the time of entry and who were admissible under § 212(a)(5)(A) or


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§ 212(a)(7)(A)(i) of the INA. 8 U.S.C. § 1182(k). The applicant must show that he

did not know that he was inadmissible at the time of entry and that he could not

have discovered his admissibility through the exercise of reasonable diligence. Id.

      Whether an applicant has exercised reasonable diligence in ascertaining his

inadmissibility is a factual determination. See Matter of Aurelio, 19 I. & N. Dec.

458 (BIA 1987) (reviewing a § 212(k) reasonable diligence determination as a

factual finding). Here, the IJ found that the Edralins did not intend to mislead the

government and that it was not reasonable to expect them to inquire about the

potential impact of the death of their sponsor. The BIA reviews factual findings by

the IJ under the clearly erroneous standard. 8 C.F.R. § 1003.1(d)(3)(i). Rather than

review these factual findings by the IJ for clear error, the BIA ignored them and

substituted its own. This was error. See Brazilien v. Holder, 569 F.3d 403, 414 (9th

Cir. 2009) (reversing BIA decision because the BIA failed to apply the clearly

erroneous standard of review to IJ’s factual findings regarding persecution on the

basis of political opinion). By failing to apply the clearly erroneous standard, the

BIA violated its own regulation. 8 C.F.R. § 1003.1(d)(3)(i); In re S-H-, I. & N.

Dec. 462, 464 (BIA 2002) (“[T]he Board must defer to the factual determinations

of an Immigration Judge in the absence of clear error.”).




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      The petition is GRANTED and REMANDED for further proceedings

consistent with this disposition.




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