Martin Rascon Quezada v. Eric H. Holder Jr.

Ninth Circuit

Martin Rascon Quezada v. Eric H. Holder Jr.

389 F. App'x 723

CourtCourt of Appeals for the Ninth Circuit

DecidedJuly 30, 2010

Docket08-71875

StatusUnpublished

This text of 389 F. App'x 723 (Martin Rascon Quezada v. Eric H. Holder Jr.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Martin Rascon Quezada v. Eric H. Holder Jr., 389 F. App'x 723 (9th Cir. 2010).

Pincite

Opinion

MEMORANDUM **

Martin Rascón Quezada, a native and citizen of Mexico, petitions for review of the Board of Appeals’ (“BIA”) decision dismissing his appeal from an immigration judge’s order denying his application for adjustment of status. We have jurisdiction under 8 U.S.C. § 1252. We review de novo the BIA’s legal determinations. Ramirez-Altamirano v. Holder, 563 F.3d 800, 804 (9th Cir.2009). We grant the petition for review.

The BIA concluded that Rascon-Quezada was ineligible to adjust status because the government adduced evidence to show he may be inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(II) and he failed to meet his burden of proof to rebut that. This conclusion is erroneous in light of Pazcoguin v. Raddiffe, 292 F.3d 1209, 1216 (9th Cir.2002) (holding that when immigration officials failed to provide an alien with a definition and the essential elements of the crime of possession, the BIA should not have considered the alien’s admission) and Esquivel-Garcia v. Holder, 593 F.3d 1025, 1030-31 (9th Cir.2010) (stating that in the context of removal, the burden of production is shifted to the government when an alien seeking adjustment has an approved 1-130).

*725 The BIA’s reliance on the police testimony is inapposite, as the officer’s description of the arrest does not constitute an admission by an alien of acts which constitute the essential elements of a violation of controlled substance laws of acts. See 8 U.S.C. § 1182(a)(2)(A)(i)(II).

We cannot determine if the BIA made a decision based on discretion in this case. Due process requires remanding matters back to the BIA when this court cannot determine on which grounds the BIA based its decision. See Lanza v. Ashcroft, 389 F.3d at 927-28 (9th Cir.2004).

PETITION FOR REVIEW GRANTED; REMANDED.

**

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

Free access — add to your briefcase to read the full text and ask questions with AI

MEMORANDUM **

Martin Rascón Quezada, a native and citizen of Mexico, petitions for review of the Board of Appeals’ (“BIA”) decision dismissing his appeal from an immigration judge’s order denying his application for adjustment of status. We have jurisdiction under 8 U.S.C. § 1252. We review de novo the BIA’s legal determinations. Ramirez-Altamirano v. Holder, 563 F.3d 800, 804 (9th Cir.2009). We grant the petition for review.

The BIA concluded that Rascon-Quezada was ineligible to adjust status because the government adduced evidence to show he may be inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(II) and he failed to meet his burden of proof to rebut that. This conclusion is erroneous in light of Pazcoguin v. Raddiffe, 292 F.3d 1209, 1216 (9th Cir.2002) (holding that when immigration officials failed to provide an alien with a definition and the essential elements of the crime of possession, the BIA should not have considered the alien’s admission) and Esquivel-Garcia v. Holder, 593 F.3d 1025, 1030-31 (9th Cir.2010) (stating that in the context of removal, the burden of production is shifted to the government when an alien seeking adjustment has an approved 1-130).

*725 The BIA’s reliance on the police testimony is inapposite, as the officer’s description of the arrest does not constitute an admission by an alien of acts which constitute the essential elements of a violation of controlled substance laws of acts. See 8 U.S.C. § 1182(a)(2)(A)(i)(II).

We cannot determine if the BIA made a decision based on discretion in this case. Due process requires remanding matters back to the BIA when this court cannot determine on which grounds the BIA based its decision. See Lanza v. Ashcroft, 389 F.3d at 927-28 (9th Cir.2004).

PETITION FOR REVIEW GRANTED; REMANDED.

**

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

Cite This Page — Counsel Stack

Bluebook (online)

389 F. App'x 723, Counsel Stack Legal Research, https://law.counselstack.com/opinion/martin-rascon-quezada-v-eric-h-holder-jr-ca9-2010.

Opinion

Related

Cite This Page — Counsel Stack