Jorge Martinez-Guijarro v. LORETTA E. LYNCH, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JORGE MARTINEZ-GUIJARRO,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
No. 13-70639
Agency No. A073-856-592
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 9, 2016
Pasadena, California
Before: REINHARDT, MURGUIA, and OWENS, Circuit Judges.
Jorge Martinez-Guijarro (“Martinez”), a lawful permanent resident (“LPR”),
petitions for review of a decision by the BIA. The BIA concluded that Martinez
was properly treated as “seeking an admission” under 8 U.S.C.
§ 1101(a)(13)(C)(iii) when he returned from a brief trip to Mexico, and
accordingly affirmed the immigration judge’s finding of removability and denial of
FILED
MAR 21 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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cancellation of removal. Because we agree with Martinez that he should not have
been treated as “seeking an admission” upon his return, we need not address the
other arguments in his petition.
An LPR who returns to the United States after traveling abroad “shall not be
regarded as seeking an admission” unless certain exceptions apply, one of which is
that the LPR “has engaged in illegal activity after having departed the United
States.” § 1101(a)(13)(C)(iii). Here, the BIA held that Martinez’s “admitted use
of marijuana in Mexico was sufficient, without more, to trigger the exception set
forth” in this subsection (emphasis added). Although the government urges
otherwise, this statement in context makes clear that the BIA relied solely on
Martinez’s admitted use of marijuana in Mexico as the basis for its finding that he
satisfied the exception set forth in § 1101(a)(13)(C)(iii). However, the government
may not just state ipse dixit that a returning LPR’s conduct constituted illegal
activity; instead, it must actually prove that it did so. The BIA erred in concluding
that the government demonstrated by clear and convincing evidence that
§ 1101(a)(13)(C)(iii) has been satisfied here. See Matter of Guzman Martinez, 25
I&N Dec. 845, 847-48 (BIA 2012).
Because the record does not establish that the exception in
§ 1101(a)(13)(C)(iii) has been satisfied, Martinez may not be treated as “seeking
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an admission.” As a result, he is not removable, contrary to the BIA’s conclusion,
for admitting to smoking marijuana in the United States. The statute that allows
for the removal of non-citizens “in and admitted to the United States” requires that
a non-citizen be “convicted of” a controlled substance offense. 8 U.S.C.
§ 1227(a)(2)(B)(i) (emphasis added). There is no evidence in the record to suggest
that Martinez satisfies this statute. Accordingly, we grant the petition and remand
to the BIA with instructions to terminate the removal proceedings.
PETITION GRANTED.
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