JUAN GABRIEL ROMERO, AKA Jonattan A. Concepcion v. MERRICK B. GARLAND , Attorney General

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
J UAN GABRIEL ROMERO, AKA
Jonattan A. Concepcion,
Petitioner,
v.
M ERRICK B. GARLAND , Attorney
General,
Respondent.
No. 17-70534
Agency No.
A087-958-853
OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 14, 2021
Pasadena, California
Filed August 2, 2021
Before: Ryan D. Nelson and Kenneth K. Lee, Circuit
Judges, and Sidney H. Stein,* District Judge.
Per Curiam Opinion
* The Honorable Sidney H. Stein, United States District Judge for
the Southern District of New York, sitting by designation.

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2 ROMERO V . GARLAND
SUMMARY**
Immigration
Granting Juan Gabriel Romero’s petition for review of a
decision of the Board of Immigration Appeals, and
remanding, the panel: (1) held that, because Romero was not
an applicant for admission, the BIA impermissibly applied
the “clearly and beyond doubt” burden of proof in finding
him inadmissible and therefore ineligible for adjustment of
status; and (2) remanded for the BIA to apply the
“preponderance of the evidence” burden.
An immigration judge denied Romero’s application for
adjustment of status on the ground that he was inadmissible,
concluding that he had not shown that he was “clearly and
beyond doubt” not inadmissible. The BIA affirmed,
believing itself bound by Lopez-Vasquez v. Holder, 706 F.3d
1072 (9th Cir. 2013), to apply the “clearly and beyond
doubt” burden of proof.
The panel observed that two burdens of proof were
disputed. First, if the alien is “an applicant for admission,”
then “the alien has the burden of establishing . . . that the
alien is clearly and beyond doubt entitled to be admitted and
is not inadmissible.” 8 U.S.C. § 1229a(c)(2)(A).
Alternatively, an applicant for relief from removal has the
burden of establishing eligibility, § 1229a(c)(4)(A), and if
the evidence indicates that one or more of the grounds for
mandatory denial of relief may apply, the “alien shall have
** This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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ROMERO V . GARLAND 3
the burden of proving by a preponderance of the evidence
that such grounds do not apply,” 8 C.F.R. § 1240.8(d). The
panel observed that the “preponderance of the evidence”
burden is comparatively much easier to meet than the
“clearly and beyond doubt” burden.
The panel concluded that the BIA erred in applying an
improperly high burden of proof, explaining that the “clearly
and beyond doubt” burden unambiguously applies only to
applicants for admission, and Romero was not an applicant
for admission because he had been admitted into the United
States before he applied for adjustment. Observing that the
petitioner in Lopez-Vasquez had entered the country
illegally, the panel explained that the BIA erroneously relied
on that case here. The panel remanded for the BIA to
reconsider whether Romero met his burden to show by a
“preponderance of the evidence” that he was not
inadmissible.
COUNSEL
Luther Snavely (argued) and Reza Athari, Reza Athari &
Associates, Las Vegas, Nevada, for Petitioner.
Joanna L. Watson (argued), Trial Attorney; Anthony P.
Nicastro, Assistant Director; Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C.; for Respondent.

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4 ROMERO V . GARLAND
OPINION
PER CURIAM:
Juan Gabriel Romero petitions for review of the Board
of Immigration Appeals (“BIA”) decision that he was
inadmissible under 8 U.S.C. § 1182(a)(6)(C)(ii) for making
a false representation of U.S. citizenship for a purpose or
benefit under Nevada law. We hold the BIA applied the
wrong burden of proof to Romero’s application. We
therefore grant the petition and remand for reconsideration
under the correct burden. See Ornelas-Chavez v. Gonzales,
458 F.3d 1052, 1058 (9th Cir. 2006).
I
Romero, a Guatemalan citizen, was admitted into the
United States in 2005 as a visitor. Romero unlawfully
remained in the United States after his authorization expired
in 2006. He married a U.S. citizen in 2007. In 2010,
Romero’s wife filed an I-130 Petition for Noncitizen
Relative with U.S. Citizenship and Immigration Services
(“USCIS”). Romero then filed a Form I-485 application for
adjustment of status.
In 2013, USCIS interviewed Romero, who admitted he
had obtained a driver’s license from the Nevada Department
of Motor Vehicles (“DMV”) under a false name. USCIS
denied Romero’s I-485 application, finding him
inadmissible for falsely claiming to be a U.S. citizen when
applying at the DMV. The Department of Homeland
Security then charged Romero with removability under
8 U.S.C. § 1227(a)(1)(B) for unlawfully remaining in the
United States. Romero admitted the factual allegations and
removal charge at immigration court. In removal

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ROMERO V . GARLAND 5
proceedings, Romero pursued only his application for
adjustment of status.
The immigration judge (“IJ”) concluded Romero was
inadmissible under 8 U.S.C. § 1182(a)(6)(C)(ii) for falsely
claiming U.S. citizenship for the benefit of a Nevada
identification card (“ID”). In his 2005 application for a
Nevada ID under the false name Jonattan Concepcion,
Romero listed his birthplace as Rio Piedras, Puerto Rico.
The IJ also found Romero had presented a Social Security
card and a Consular Report of Birth Abroad of a U.S. Citizen
(“CRBA”). The IJ decided that Romero’s misrepresentation
of birth in Puerto Rico was a false claim to U.S. citizenship,
as was Romero’s submission of a CRBA. The IJ concluded
that Romero did not show he was “clearly and beyond
doubt” not inadmissible, applying the burden of proof from
8 U.S.C. § 1229a(c)(2)(A). The IJ denied Romero’s
application for adjustment of status and ordered him
removed to Guatemala.
The BIA upheld the IJ. The BIA believed it was bound
by Lopez-Vasquez v. Holder, 706 F.3d 1072 (9th Cir. 2013),
to apply the “clearly and beyond doubt” burden of proof.
The BIA agreed with the IJ that Romero’s misrepresentation
of birth in Puerto Rico rendered him inadmissible, as did his
false CRBA. The BIA also concluded Romero waived his
argument that a false statement of U.S. citizenship must be
material to any state benefit. The BIA also held that even
absent waiver, Romero’s misrepresentation of U.S.
citizenship was necessary to obtain an ID because Nevada
requires proof of lawful status or authorization to work in the
United States.

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6 ROMERO V . GARLAND
II
We have jurisdiction to “review [] constitutional claims
and questions of law presented in petitions for review of final
removal orders.” Fernandez-Ruiz v. Gonzales, 410 F.3d
585, 587 (9th Cir. 2005), as adopted by 466 F.3d 1121, 1124
(9th Cir. 2006) (en banc). We review legal questions de
novo, Zumel v. Lynch, 803 F.3d 463, 471 (9th Cir. 2015),
including the question of what burden of proof applies,
Malkandi v. Holder, 576 F.3d 906, 913 (9th Cir. 2009). “We
review only the BIA’s opinion, except to the extent that it
expressly adopted portions of the IJ’s decision.” Villegas
Sanchez v. Garland, 990 F.3d 1173, 1178 (9th Cir. 2021)
(quotation omitted). “Our review is limited to those grounds
explicitly relied upon by the BIA.” Id. (cleaned up).
III
Romero applied for adjustment of status. Our review
hinges on whether Romero met his burden to show he is not
inadmissible. The Attorney General has discretion to adjust
the status of an admitted alien, like Romero, to lawful
permanent resident (“LPR”) if “the alien is eligible to
receive an immigrant visa and is admissible to the United
States for permanent residence, and . . . an immigrant visa is
immediately available to him at the time his application is
filed.” 8 U.S.C. § 1255(a). But “[a]ny alien who falsely
represents, or has falsely represented, himself or herself to
be a citizen of the United States for any purpose or benefit
under . . . Federal or State law is inadmissible.” Id.
§ 1182(a)(6)(C)(ii).
Two burdens of proof are disputed. First, “if the alien is
an applicant for admission,” then “the alien has the burden
of establishing . . . that the alien is clearly and beyond doubt
entitled to be admitted and is not inadmissible under section

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ROMERO V . GARLAND 7
1182 of this title.” Id. § 1229a(c)(2)(A); see also 8 C.F.R.
§ 1240.8(b)–(c) (applying “clearly and beyond doubt”
burden to “proceedings commenced upon a respondent’s
arrival” or “[a]liens present in the United States without
being admitted”). This burden is stringent, comparable to
“beyond a reasonable doubt” in criminal prosecutions. Cf.
Valadez-Munoz v. Holder, 623 F.3d 1304, 1309 (9th Cir.
2010) (analogizing the “clearly and beyond doubt” and
“beyond a reasonable doubt” burdens, but with the burden
on the alien rather than the prosecutor).
Alternatively, “[a]n alien applying for relief or protection
from removal has the burden of proof to establish that the
alien . . . satisfies the applicable eligibility requirements.”
8 U.S.C. § 1229a(c)(4)(A). “If the evidence indicates that
one or more of the grounds for mandatory denial of the
application for relief may apply, the alien shall have the
burden of proving by a preponderance of the evidence that
such grounds do not apply.” 8 C.F.R. § 1240.8(d). The
“preponderance of the evidence” burden is comparatively
much easier to meet than the “clearly and beyond doubt”
burden. Cf. Addington v. Texas, 441 U.S. 418, 423 (1979).
Fundamentally, Romero argues the BIA imposed an
improperly high burden of proof and for remand for
reconsideration under the lower burden. The “clearly and
beyond doubt” burden under 8 U.S.C. § 1229a(c)(2)(A)
unambiguously applies only to applicants for admission.
And the statutory definition of admission “unambiguously
demonstrates” an alien’s “post-entry adjustment of status to
an LPR after h[is] admission to the United States as a visitor
does not constitute an admission.” Negrete-Ramirez v.
Holder, 741 F.3d 1047, 1054 (9th Cir. 2014); see also
8 U.S.C. § 1101(a)(13)(A) (defining “admitted” and
“admission” as “the lawful entry of the alien into the United

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8 ROMERO V . GARLAND
States after inspection and authorization by an immigration
officer”). Romero had been admitted before he applied for
adjustment of status. Thus, he is not now an “applicant for
admission,” and therefore the “clearly and beyond doubt”
burden does not apply. Rather, the “preponderance of the
evidence” burden from 8 C.F.R. § 1240.8(d) applies.
The BIA erroneously relied on our decision in Lopez-
Vasquez, 706 F.3d at 1074 n.1. In Lopez-Vasquez, the
petitioner had “entered the United States illegally.” Id.
at 1076. Therefore, he was treated as an applicant for
admission and bore the burden of proving “clearly and
beyond doubt” he was not inadmissible. See id. at 1074 n.1;
see also Valadez-Munoz, 623 F.3d at 1308; Blanco v.
Mukasey, 518 F.3d 714, 720 (9th Cir. 2008). But “[a]liens
who have been lawfully admitted to the country generally
receive more protection under immigration law than aliens
who are seeking admission to the United States.” Vazquez
Romero v. Garland, 999 F.3d 656, 659 (9th Cir. 2021)
(footnote omitted). Romero was lawfully admitted and is
not now an applicant for admission, so our decision in
Lopez-Vasquez does not govern the burden of proof here.
Because the BIA fundamentally erred in applying an
improperly high burden of proof, we need not reach the other
issues raised by Romero. “[W]here the BIA applies the
wrong legal standard to an applicant’s claim, the appropriate
relief from this court is remand for reconsideration under the
correct standard.” Ornelas-Chavez, 458 F.3d at 1058.
Therefore, we remand for the BIA to reconsider whether
Romero met his burden to show by a “preponderance of the
evidence” under 8 C.F.R. § 1240.8(d) that he was not
inadmissible.
PETITION FOR REVIEW GRANTED.

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