Ortega

MEMORANDUM **

Franklin Asuncion Ortega seeks review of the BIA’s determination that he is statutorily ineligible for a waiver of inadmissibility under 8 U.S.C. § 1182 (k). He contends there is not substantial evidence in the record to support the BIA’s adverse credibility finding. We have jurisdiction pursuant to former 8 U.S.C. § 1105a. *** We grant the petition for review and remand for further proceedings.

DISCUSSION

This case turns on whether Ortega was “unaware of [his] ineligibility for admission and ... could not have discovered the *595 ineligibility by exercise of reasonable diligence.” See Senica v. INS, 16 F.3d 1013, 1014 (9th Cir.1994) (applying § 1182(k)). Ortega denied having any knowledge of the fraud carried out by his family. Moreover, the INS admitted that it had no evidence that Ortega knew of the fraud. The BIA, however, denied the requested relief based on alleged misstatements made by Ortega to the INS in 1987, when he stated that there were eleven children in his family: “Aida, Cecilia, Soledad, Evelyn, Edilberto, Ernesto, Priscilla, Carlos, Venus, Frank (himself) and Bernardino.” In fact, Ortega has an older brother, Jose, and Bernardino is Ortega’s…

dissenting.

Ortega has the burden to prove his eligibility for relief under section 212(k). Thus, he must demonstrate he did not know and could not have known in the exercise of reasonable diligence of his sister’s fraud scheme which was the basis of his and his family’s admissibility into this country.

As with most fraud scams, there is no direct evidence of knowledge. But the IJ and Board found circumstantial evidence Ortega knew. The question is whether we are compelled to find otherwise. INS v. Elias-Zacarias, 502 U.S. 478, 481 , 112 S.Ct. 812 , 117 L.Ed.2d 38 (1992).

At the time of his illegal entry, he was 23 years old. He testified he did not know of the fraud. The IJ disbelieved him. That is evidence of the contrary: he did know of the fraud. Could the IJ and Board do so?

*596 He was found to have misled a government agent about the names of his siblings. He denies he ever had the conversation. The IJ found he lied: he did have the conversation.

The IJ found this deceptiveness showed his knowledge of the nature of the immigration effort and that, at least after the conversation, he logically would have discussed it with his family. But Ortega lied about the…