Xiomara Rodriguez-De Espinoza v. Eric Holder, Jr.

MEMORANDUM **

Xiomara Esther Rodriguez-De Espinoza petitions for review of the Board of Immigration Appeals’ (“BIA”) decision ordering the Petitioner’s removal. In an earlier remand, the BIA had asked the Immigration Judge (“IJ”) to consider whether Petitioner’s testimony was sufficient to show inadmissability under I.N.A. § 212(a)(6)(E)(i). The IJ’s decision on remand found that the testimony was insufficient to establish the elements of a smuggling’ defense. The IJ stated that she “could not be satisfied that respondent, in fact, made admissions regarding each of the elements.... ”

When the government appealed to the BIA, however, the BIA stated that the Petitioner had admitted the elements of alien smuggling. The BIA ignored both the IJ’s finding that the Petitioner had not made sufficient admissions and Petitioner’s argument that the testimony was vague and insufficient.

The BIA is required to review findings of fact for clear error. 8 C.F.R. § 1003.1 (d)(3)(i). Whether it has failed to *373 do so is a question of law we have jurisdiction to review. Perez-Palafox v. Holder, 744 F.3d 1138, 1143 (9th Cir.2014). The BIA did not review the finding in this case for clear error.…

concurring in part and dissenting in part.

I agree that the petition for review should be granted because the BIA failed to review the IJ’s findings of fact for clear error, as it is required to do. I disagree, however, with our declaration that petitioner is accordingly eligible for adjustment of status. That is a decision that is supposed to be left to the BIA, not made by us. See INS v. Ventura, 537 U.S. 12, 16-18 , 123 S.Ct. 353 , 154 L.Ed.2d 272 (2002). The case should be remanded for the BIA to review the IJ’s findings of fact applying the proper standard.

The authority cited by the majority to justify its result does not fit this situation. Indeed, in that case, Vitug v. Holder, 723 F.3d 1056 (9th Cir.2013), we expressly recognized that when the BIA fails to apply the clear error standard of review to an IJ’s factual findings, “we typically remand so that the BIA may apply the correct standard of review and properly consider the IJ’s factual findings.” Id. at 1064 . We did not do so in that case because we concluded that no reasonable factfinder could reach a contrary result. Id. at 1065 .

The majority does not contend that is true here, and it is not. Based on the…

FILED

NOT FOR PUBLICATION JUL 30 2014

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

XIOMARA ESTHER RODRIGUEZ-DE No. 09-73171 ESPINOZA, AKA Xiomara Esther Rodriguez-Espinoza, Agency No. A041-319-055

Petitioner,

MEMORANDUM*

v.

ERIC H. HOLDER, Jr., Attorney General,

Respondent.

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

Argued and Submitted February 6, 2014 Pasadena, California

Before: SCHROEDER and CLIFTON, Circuit Judges, and COGAN, District Judge.**

Xiomara Esther Rodriguez-De Espinoza petitions for review of the Board of

Immigration Appeals’ (“BIA”) decision ordering the Petitioner’s removal. In an

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Brian M. Cogan, United States District Judge for the Eastern District of New York, sitting by designation. earlier remand, the BIA had asked the Immigration Judge (“IJ”) to consider

whether Petitioner’s testimony was sufficient to show inadmissability under…