Rogelio Salas-Gomez, aka ROGELIO SALAS v. ERIC HOLDER, Jr., Attorney General

This disposition is not appropriate for publication and is not precedent except as*
provided by 9th Cir. R. 36-3.
Honorable Donald W. Molloy, United States District Judge for the District of**
Montana, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROGELIO SALAS-GOMEZ, aka
ROGELIO SALAS
Petitioner,
v.
ERIC HOLDER, Jr., Attorney General,
Respondent.
No. 11-72840
BIA No. A200-975-029
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 8, 2013
Pasadena, California
Before: REINHARDT and MURGUIA, Circuit Judges, and MOLLOY, District
Judge**
Rogelio Salas-Gomez, a native and citizen of Mexico, petitions for review of
the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal and
FILED
MAY 09 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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denying his application for cancellation of removal. Because the parties are
familiar with the factual history, we will not recount it here. We grant the petition
for review and remand for further proceedings.
I
The Department of Homeland Security instituted removal proceedings
against Salas-Gomez on April 28, 2011, by filing with the Immigration Court a
Notice to Appear (“NTA”) charging that he was removable as an alien who has not
been admitted or paroled, in violation of INA § 212(a)(6)(A)(i), 8 U.S.C. §
1182(a)(6)(A)(i). Salas-Gomez conceded he was removable as charged, but
requested cancellation of removal under INA § 240A(b)(1), 8 U.S.C. §
1229b(b)(1). During his hearings before the Immigration Judge (“IJ”), Salas-
Gomez’s attorney stated Salas-Gomez may have had a prior controlled substance
conviction. On June 13, 2011, the IJ found Salas-Gomez removable and, based on
his attorney’s statements, denied his application for relief, ordering him removed to
Mexico. The BIA issued an opinion affirming the IJ’s decision on September 21,
2011.
Although a petitioner generally bears the burden to establish his eligibility
for relief, 8 C.F.R. § 1240.8(d) provides that a petitioner has the burden to prove
that “grounds for mandatory denial of the application for relief” do not apply only
if “the evidence indicates that one or more” such grounds may apply. Because

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statements alone are insufficient evidence for proving a criminal conviction, 8
C.F.R. § 1003.41(d), the evidence here was insufficient to both shift the burden of
proof to Salas-Gomez and establish that he had a disqualifying conviction. Thus,
the IJ erred in finding Salas-Gomez categorically ineligible for cancellation of
removal. We therefore remand on an open record to permit both the government
and the petitioner to supplement the record. See Flores-Lopez v. Holder, 685 F.3d
857, 866 (9th Cir. 2012).
II.
The government argues Salas-Gomez did not raise the issue whether the
evidence was sufficient to demonstrate his ineligibility for relief on the basis of a
disqualifying conviction before the agency and therefore did not exhaust the issue.
However, the BIA addressed the issue in its decision, and thus it has been
exhausted. See Kin v. Holder, 595 F.3d 1050, 1055 (9th Cir. 2010).
PETITION FOR REVIEW GRANTED; REMANDED.

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