NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 29 2025

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARIO SANDOVAL-GOMEZ, No. 23-2472

Petitioner, Agency No. A092-563-965

v.

MEMORANDUM*

PAMELA BONDI, Attorney General,

Respondent.

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

Argued and Submitted March 27, 2025 Pasadena, California

Before: BOGGS, ** FRIEDLAND, and BRESS, Circuit Judges.

Mario Sandoval-Gomez, a native and citizen of Mexico, petitions for review

of the decision of the Board of Immigration Appeals (“BIA”) (issued after remand

from this court in Sandoval-Gomez v. Garland, 849 F. App’x 220 (9th Cir. 2021))

that he is ineligible for cancellation of removal. The BIA held that Sandoval-Gomez

could not show that his conviction for attempted arson under California Penal Code

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Danny J. Boggs, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. Sandoval-Gomez v. Bondi 23-2472 section 455 was based on a provision of the statute that does not constitute an

aggravated felony under 8 U.S.C. § 1101(a)(43)(E)(i) and that he therefore failed to

establish eligibility for cancellation of removal. Where the BIA conducts an

independent review of the facts and law, we review only the BIA’s decision.

Quijada-Aguilar v. Lynch, 799 F.3d 1303, 1305 (9th Cir. 2015), abrogated on other

grounds by Borden v. United States, 593 U.S. 420 (2021). We review questions of

law de novo. Vasquez-Borjas v. Garland, 36 F.4th 891, 895 (9th Cir. 2022). We have

jurisdiction under 8 U.S.C. § 1252 and grant the petition.

In 2006, Sandoval-Gomez pled guilty to attempted arson in violation of

California Penal Code section 455. Sandoval alleges that the charge stemmed from

an incident when his girlfriend refused to let him inside her mother’s house to see

his children and, in response, Sandoval-Gomez “sprinkled a small amount of

gasoline on a car, attempting to get her attention.” He testified at his removal

hearings in 2007 and 2010 that he never attempted to and had no intention to ignite

a fire.

After multiple motions and appeals, in 2021 this court held that the

government had failed to meet its burden of proof to show that Sandoval-Gomez

was removable for committing an aggravated felony offense for attempting to set

fire to or burn property under 18 U.S.C. § 844, as the record was “inconclusive” as

to how he had committed the state attempted-arson offense. 849 F. App’x at 222;

2 Sandoval-Gomez v. Bondi 23-2472 see 8 U.S.C. § 1101(a)(43)(E)(i). We held that the statute was divisible and that “the

issue of whether Sandoval-Gomez is eligible for cancellation of removal remain[ed]

unresolved,” so we remanded the case to the BIA “to determine in the first instance

whether Sandoval-Gomez is eligible for cancellation of removal.” 849 F. App’x at

221–22.

On remand, Sandoval-Gomez asked the BIA to remand to the immigration

judge (“IJ”) to permit him to further develop the record regarding the facts of his

conviction in light of his testimony from 2007 and 2010, when he testified that he

had no intention of lighting a fire, so that he could establish that his attempted arson

conviction did not render him ineligible for cancellation of removal. The BIA

believed that Pereida v. Wilkinson, 592 U.S. 224 (2021), prohibited review of

testimonial evidence (old or new) in determining what offense served as the basis of

Sandoval-Gomez’s attempted-arson conviction, and thus held that the record

remained inconclusive and that therefore Sandoval-Gomez had not carried his

burden to establish that he was eligible for cancellation of removal.

The BIA erred in so holding. As the government concedes, consideration of

testimonial evidence to establish the crime of conviction is, in fact, allowed under

Pereida, 592 U.S. at 237–38.

We remand this matter to the BIA to consider in the first instance Sandoval-

Gomez’s existing oral testimony, including whether the IJ found that testimony

3 Sandoval-Gomez v. Bondi 23-2472 credible, and, if relevant, whether that testimony is sufficient to carry his burden to

show eligibility for cancellation of removal. The BIA may also consider whether the

matter should be remanded to the IJ for any necessary credibility determination

and/or for the development of additional relevant evidence, possibly including

statements from Sandoval-Gomez’s ex-girlfriend and her mother.

PETITION FOR REVIEW GRANTED.

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