Guadalupe Flores -Rodriguez v. MERRICK B. GARLAND , Attorney General

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GUADALUPE FLORES -RODRIGUEZ ,
Petitioner,
v.
M ERRICK B. GARLAND , Attorney
General,
Respondent.
No. 19-70177
Agency No.
A072-113-256
OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 10, 2021
San Francisco, California
Filed August 16, 2021
Before: Kim McLane Wardlaw and Ronald M. Gould,
Circuit Judges, and James David Cain, Jr.,* District Judge.
Opinion by Judge Gould
* The Honorable James David Cain, Jr., United States District Judge
for the Western District of Louisiana, sitting by designation.

-- 1 of 15 --

2 FLORES -RODRIGUEZ V. GARLAND
SUMMARY**
Immigration
Granting Guadalupe Flores-Rodriguez’s petition for
review of a decision of the Board of Immigration Appeals,
and remanding, the panel held that the immigration judge
(“IJ”) failed to put Flores-Rodriguez on notice that his
alleged false claim of United States citizenship would be at
issue during his hearing, and that such failure violated due
process by denying Flores-Rodriguez a full and fair hearing.
Flores-Rodriguez, a Mexican citizen, entered the United
States with his parents without inspection in 1989 when he
was around two years old. When he was later arrested by the
Department of Homeland Security (“DHS”) in 2010, he
stated that he was a United States citizen and had a United
States birth certificate. In immigration proceedings, he
sought adjustment of status based on his marriage to a United
States citizen, and claimed he never knowingly made a false
claim to citizenship because he was raised to believe he was
a citizen. At a 2012 hearing, the IJ stated that, if DHS
pursued a false claim of citizenship charge, and that charge
were sustained, Flores-Rodriguez would not be eligible for
adjustment.
At a 2014 hearing, the IJ recommended that Flores-
Rodriguez testify on the false claim issue. Flores-Rodriguez
did so, emphasizing that up until his immigration
proceedings, he always believed that he was born in the
** This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

-- 2 of 15 --

FLORES -RODRIGUEZ V . GARLAND 3
United States. Flores-Rodriguez’s wife and brother also
testified to that effect. However, the IJ and BIA concluded
that Flores-Rodriguez was ineligible for adjustment on the
ground that he was inadmissible for making a false claim to
citizenship.
The panel held that Flores-Rodriguez was not put on
notice that his alleged false claim of citizenship would be at
issue in his 2014 hearing. Rather, by that time, his alleged
false claim of citizenship had not been raised by the IJ for
two years, and the last time it had been discussed the IJ
implied it would only be dispositive if DHS sustained a false
claim of citizenship charge against him, but such a charge
was never brought. Further, the panel explained that,
because Flores-Rodriguez was not given notice, he did not
brief the issue before the 2014 hearing, his attorney was not
prepared to discuss it in detail, he was unable to provide
witnesses or evidence on the matter, and the available
witnesses were not prepared to discuss the issue.
Specifically, he was unable to submit testimony from his
purported midwife, a copy of his United States birth
certificate, or his parents’ testimony.
The panel further concluded that Flores-Rodriguez had
suffered prejudice, explaining that the midwife’s testimony
alone may have affected the outcome of the case. The panel
observed that, if Flores-Rodriguez had been given the
chance to present the midwife’s testimony, and the IJ found
her credible regarding either the actual circumstances of
Flores-Rodriguez’s birth or the consistency of the story he
had been told, the IJ may have reconsidered his
determination that Flores-Rodriguez could not and did not
believe he was a United States citizen in 2010.

-- 3 of 15 --

4 FLORES -RODRIGUEZ V. GARLAND
The panel remanded to the BIA with instructions that it
hold whatever future proceedings are necessary to ensure
due process is given to Flores-Rodriguez before decision is
made.
COUNSEL
Karen S. Monrreal-Salazar (argued), Law Offices of Karen
S. Monrreal, Reno, Nevada, for Petitioner.
Paul Fiorino (argued) and Nancy Friedman, Senior
Litigation Counsel; Ann C. Varnon, Trial Attorney; Office
of Immigration Litigation, Civil Division, United States
Department of Justice, Washington, D.C.; for Respondent.
OPINION
GOULD, Circuit Judge:
Guadalupe Flores-Rodriguez (“Flores-Rodriguez”)
appeals the Board of Immigration Appeals’s decision
finding him inadmissible under section 212(a)(6)(C)(ii) of
the Immigration and Nationality Act, 8 U.S.C.
§ 1182(a)(6)(C)(ii), because he allegedly falsely represented
himself to be a United States citizen to avoid arrest by
immigration officials. We have jurisdiction under 8 U.S.C.
§ 1252(a)(1), and we grant Flores-Rodriguez’s petition for
review.
In March 1989, Flores-Rodriguez, a Mexican citizen,
entered the United States with his Mexican national parents
without inspection. Flores-Rodriguez was around two years
old at the time. In 1992, Flores-Rodriguez’s father applied

-- 4 of 15 --

FLORES -RODRIGUEZ V . GARLAND 5
for asylum. Flores-Rodriguez’s father admitted that he
entered the United States without inspection in 1989 with his
wife and their two minor sons, and listed Flores-Rodriguez
as having been born in Mexico in April 1987. In June 1993,
Flores-Rodriguez’s father was issued an Order to Show
Cause and Notice of Hearing charging him, Flores-
Rodriguez’s mother, Flores-Rodriguez, and Flores-
Rodriguez’s older brother as deportable. After a hearing in
1994, an Immigration Judge (“IJ”) ordered each family
member deported. They were granted voluntary departure,
but instead chose to stay in the United States under their
alternative outstanding deportation orders.
In June 2010, Flores-Rodriguez was arrested by the
Department of Homeland Security (“DHS”) in Nevada, at
the home he lived in with his two sons and their mother,
Adria Galindo. During the arrest, Flores-Rodriguez stated
that he was a United States citizen and had a United States
birth certificate. In June 2010, DHS served Flores-
Rodriguez with a Notice to Appear (“NTA”), charging him
with removal under 8 U.S.C. § 1182(a)(6)(A)(i) (entry
without inspection). At Flores-Rodriguez’s November 2010
hearing, he denied the allegations and charges in the NTA.
In March 2011, Flores-Rodriguez married Adria, a
United States citizen. At a March 2011 hearing, DHS
submitted several documents to prove Flores-Rodriguez’s
alienage under 8 C.F.R. § 240.8(c). These documents
included the 1993 Order to Show Cause, the 1994 IJ order,
Flores-Rodriguez’s Mexican birth certificate, and his
father’s 1992 asylum application, in which his father attested
that he was born in Mexico and designated Flores-Rodriguez
as an alien beneficiary. After the burden shifted to Flores-
Rodriguez to rebut DHS’s presumption of alienage, his
attorney stated that Flores-Rodriguez had “no evidence to

-- 5 of 15 --

6 FLORES -RODRIGUEZ V. GARLAND
rebut those allegations.” The IJ sustained the factual
allegations and charge. After Flores-Rodriguez refused to
designate a country for removal, Mexico was designated for
him.
In a January 2012 hearing, a new IJ stated that the
previous IJ had identified a “possible false claim to United
States citizenship.” Flores-Rodriguez, through his attorney,
acknowledged that he had “made representations” of being
a United States citizen during his 2010 arrest, because he
was raised to believe he was a citizen. His attorney also
noted that after detaining and interviewing him, ICE
“determined that they didn’t think it was appropriate to make
a charge of making a false claim of citizenship based upon
the circumstances.” At the time of the 2012 hearing, Flores-
Rodriguez no longer claimed to be a United States citizen,
but argued that he never knowingly made a false claim to
citizenship and therefore was eligible to apply for adjustment
of status based on his marriage to a United States citizen.
The IJ informed Flores-Rodriguez and his attorney that “if
DHS is pursuing a false claim to citizenship charge, if such
a charge were sustained, the respondent wouldn’t be eligible
for adjustment of status,” but did not mention the possibility
that Flores-Rodriguez’s eligibility would be impacted absent
such a charge.
At his hearing in January 2013, Flores-Rodriguez
submitted his wife’s approved Form I-130, as well as an
application for adjustment of status. DHS asserted that
Flores-Rodriguez was not eligible for adjustment of status
because of the 2010 entry without inspection charge.
Flores-Rodriguez then filed a motion seeking that the
Immigration Court sua sponte reconsider its previous ruling
regarding the time, place, and manner of his entry into the
United States. At a January 2014 hearing, the IJ denied

-- 6 of 15 --

FLORES -RODRIGUEZ V . GARLAND 7
Flores-Rodriguez’s motion for reconsideration. Flores-
Rodriguez did not seek cancellation of removal, admitting
he could not satisfy the moral character requirement because
he helped his parents unlawfully enter the United States in
2005 and 2008 when he drove them back into the country
after trips to Mexico.
The IJ at the 2014 hearing also recommended that
Flores-Rodriguez testify regarding whether he made a false
claim to United State citizenship and therefore was barred
from relief under 8 U.S.C. § 1182(a)(6)(C)(ii). Flores-
Rodriguez testified he was born in April 1987, and attended
school in Elko, Nevada, and by the time he was seven years
old he believed he was born in the United States, because
that is what his parents told him. He did not have any
memory of the 1994 immigration proceeding and was never
told by his family about the related deportation order. In
2001, Flores-Rodriguez used two resident alien cards and a
social security card his mother gave him to represent that he
was of legal working age. He stated he thought those
documents were legal, even though he knew that someone
else’s signatures appeared on them. He used those
documents to obtain employment. He also used the social
security card to file taxes.
Flores-Rodriguez’s parents gave him his United States
birth certificate “as soon as they got it,” when he was around
16. He was told the birth certificate was delayed because he
had been born in a house, delivered by a midwife from the
community, rather than in a hospital. He believed it was
genuine and used it for proof of citizenship when needed.
Shortly thereafter, Flores-Rodriguez used his false United
States birth certificate and social security card to get a
Nevada driver’s license. Around the same time, he also tried
to get a United States passport, but his application was

-- 7 of 15 --

8 FLORES -RODRIGUEZ V. GARLAND
denied. In 2006, when Flores-Rodriguez went to Mexico,
his mother gave him a Mexican birth certificate and told him
to show it to Mexican border officials. She told him that he
had a Mexican birth certificate because he was a dual citizen.
When he returned to the United States, he just showed his
driver’s license.
From 2004 to 2010, Flores-Rodriguez drove to Mexico
several times, and on at least three occasions showed his
Nevada driver’s license at the border. In 2006, he presented
his Nevada birth certificate when he returned to the United
States from Mexico.
Over the course of the hearing, Flores-Rodriguez
emphasized that up until the immigration proceedings
against him, he always believed he was born in the United
States. He explained that he still saw himself as a United
States citizen, and still believed he was born in Elko.
However, he accepted the IJ’s ruling that he had not
provided sufficient evidence to prove citizenship, and
acknowledged the finding that he is a Mexican citizen.
Flores-Rodriguez’s wife, Adria, also testified. She
stated that she always believed Flores-Rodriguez was a
United States citizen because she had seen his birth
certificate and social security card, they had bought a house
and cars without problem, and he “had a respectable job.”
Flores-Rodriguez’s mother had also told her that he was born
in Elko, Nevada, and had gone into detail about the
circumstances of his birth. Adria also did not know his
parents and older brother were living in the United States
without lawful status. She stated that she and her sons would
remain in Elko if Flores-Rodriguez was ordered removed.

-- 8 of 15 --

FLORES -RODRIGUEZ V . GARLAND 9
Flores-Rodriguez’s younger brother, Eduardo, also
testified. He was born in Elko, Nevada and also thought
Flores-Rodriguez was born in Elko.
The IJ issued its decision in February 2014. In its
decision, the IJ relied partly on a recording of the deportation
hearing that Flores-Rodriguez attended with his parents and
older brother. The IJ found that Flores-Rodriguez’s
Mexican birth certificate was legitimate, and that he
possessed fake resident alien cards. Further, the IJ found his
denied application for a citizen passport indicated Flores-
Rodriguez knew his Nevada birth certificate was not
persuasive evidence of United States citizenship. The IJ also
noted that Flores-Rodriguez entered the United States from
Mexico asserting that he was a United States citizen, and that
when he became an adult, he claimed to be a citizen in June
2010, to avoid arrest. The IJ found that Flores-Rodriguez
was ineligible for adjustment of status because he could not
demonstrate admissibility to the United States for permanent
residence.
In March 2014, Flores-Rodriguez filed a Notice of
Appeal with the Board of Immigration Appeals (“BIA”). In
February 2016, the BIA adopted and affirmed the IJ’s
decision. The BIA rejected Flores-Rodriguez’s due process
arguments, stating that the IJ properly resolved Flores-
Rodriguez’s claims based on the evidence, and that Flores-
Rodriguez’s hearing was fundamentally fair.
Following the BIA’s decision, the Government filed in
our court an unopposed motion to remand to the BIA to
analyze Flores-Rodriguez’s due process claim regarding the
admission of a recording of the 1994 hearing, allowing
Flores-Rodriguez the chance to address the 1994 tape
recording or the IJ to not rely on it as a basis for his decision.
We granted the motion.

-- 9 of 15 --

10 FLORES -RODRIGUEZ V. GARLAND
In December 2018, on remand, the BIA vacated its
February 2016 decision, excluded the 1994 audio-taped
deportation hearing, and again dismissed the appeal. The
BIA held this time that Flores-Rodriguez was inadmissible
under 8 U.S.C. § 1182(a)(6)(C)(ii) (falsely claiming
citizenship) because he had represented himself as a United
States citizen to immigration officials to avoid arrest in June
2010. The BIA reasoned that the evidence showed Flores-
Rodriguez could not have reasonably believed, and did not
believe, that he was a United States citizen.
The BIA decided to not reach Flores-Rodriguez’s
argument that a false claim to citizenship under
§ 1182(a)(6)(C)(ii) must be made knowingly, because the IJ
did not clearly err in finding that Flores-Rodriguez’s claim
that he was born in the United States and became a United
States citizen at birth was not credible. The BIA also stated
the IJ did not clearly err in making several findings. First,
the IJ did not err in finding that by June 2010, Flores-
Rodriguez “did not reasonably believe and in fact did not
believe” he was a United States citizen, given evidence in
the record of a delayed birth certificate from Nevada, a
Mexican birth certificate, two fake resident alien cards, and
a letter denying his application for a United States citizen
passport. Second, the IJ did not err in finding that Flores-
Rodriguez’s Mexican birth certificate was legitimate and his
two fake resident alien cards plus the denied passport
application further supported the conclusion that he did not
in fact believe he was a United States citizen.
The BIA observed that the IJ had properly weighed the
evidence and was entitled to make reasonable inferences
from the evidence in the record. The BIA reasoned that even
if Flores-Rodriguez at first believed he was a United States
citizen, his subsequent misrepresentation of citizenship to

-- 10 of 15 --

FLORES -RODRIGUEZ V . GARLAND 11
immigration officials, combined with the other evidence,
was enough to make him inadmissible. Finally, the BIA held
it was not error to conclude Flores-Rodriguez did not meet
the exception at 8 U.S.C. § 1182(a)(6)(C)(ii)(II), because his
parents are not United States citizens and he admitted he
assisted in their unlawful entry into the United States. The
BIA was not persuaded by Flores-Rodriguez’s remaining
due process arguments, because the IJ resolved his claims
based on the evidence, and it could not discern any evidence
of bias, partiality, or personal animus. The BIA held Flores-
Rodriguez completely asserted his claim, and the IJ’s
rejection of the claim did not constitute impermissible bias.
This petition for review followed.
We grant the petition for review of the BIA decision
because we conclude that a due process violation occurred,
and caused Flores-Rodriguez prejudice.
“When, as here, the BIA conducts an independent review
of the IJ’s findings, this court reviews the BIA’s decision and
not that of the IJ.” Valadez-Munoz v. Holder, 623 F.3d 1304,
1307–08 (9th Cir. 2010) (quoting Poblete-Mendoza v.
Holder, 606 F.3d 1137, 1140 (9th Cir. 2010)). We review
factual findings for substantial evidence. Shrestha v.
Holder, 590 F.3d 1034, 1039 (9th Cir. 2010). Under the
substantial evidence standard, “administrative findings of
fact are conclusive unless any reasonable adjudicator would
be compelled to conclude to the contrary.” Mairena v. Barr,
917 F.3d 1119, 1123 (9th Cir. 2019) (quoting 8 U.S.C.
§ 1252(b)(4)(B)).
We review issues of law de novo. Shrestha, 590 F.3d
at 1048. We also review constitutional issues de novo.
Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1246 (9th Cir.
2008).

-- 11 of 15 --

12 FLORES -RODRIGUEZ V. GARLAND
“[A]n alien who faces deportation is entitled to a full and
fair hearing of his claims and a reasonable opportunity to
present evidence on his behalf.” Colmenar v. I.N.S.,
210 F.3d 967, 971 (9th Cir. 2000); see also Reyes-Melendez
v. I.N.S., 342 F.3d 1001, 1006 (9th Cir. 2003). If an IJ’s
actions prevent the introduction of “significant testimony,”
that generally violates due process. Lopez-Umanzor v.
Gonzales, 405 F.3d 1049, 1056–57 (9th Cir. 2005); see also
Kaur v. Ashcroft, 388 F.3d 734, 737 (9th Cir. 2004) (“[I]t is
an IJ’s duty to develop the record fully and fairly.” (citation
omitted)). To warrant reversal for a violation of due process,
the petitioner must also show prejudice, “which means that
the outcome of the proceeding may have been affected by
the alleged violation.” Colmenar, 210 F.3d at 971 (emphasis
added).
We hold that Flores-Rodriguez was not put on notice that
his alleged false claim of citizenship would be at issue in his
2014 hearing. Notice and an opportunity to be heard are
fundamental elements of due process that have been long
established in our law. See e.g., Mullane v. Cent. Hanover
Bank & Trust Co., 339 U.S. 306, 314 (1950). Contrary to
what basic due process requires, no such notice was
available here. At Flores-Rodriguez’s 2012 preliminary
hearing, the IJ discussed false claims of citizenship only in
the context of a possible DHS charge, telling him that if such
a charge were sustained, he would not be eligible for
adjustment of status. At Flores-Rodriguez’s 2013
preliminary hearing—during which the final IJ hearing was
scheduled—the issue was not raised at all.
In sum, by the time Flores-Rodriguez had his final
hearing in 2014, his alleged false claim of citizenship had
not been raised by the IJ for two years, and the last time it
had been discussed the IJ implied it would only be

-- 12 of 15 --

FLORES -RODRIGUEZ V . GARLAND 13
dispositive if DHS sustained a false claim of citizenship
charge against him. DHS never even brought such a charge.
Although Flores-Rodriguez was not given notice, his
alleged false claim of citizenship was, in the IJ’s words, “the
main issue” during his 2014 hearing and in the IJ’s final
decision. Because Flores-Rodriguez was not given notice,
he did not brief the issue before the 2014 hearing, his
attorney was not prepared to discuss it in detail, and he was
unable to provide witnesses or evidence on the matter. The
available witnesses were not prepared to discuss the false
claim issue.1 Flores-Rodriguez was not given the chance to
prepare other witnesses and evidence addressing his beliefs
regarding his United States citizenship. Among other things,
Flores-Rodriguez was unable to submit testimony from his
purported midwife, a copy of his United States birth
certificate, or testimony from his parents, all of which could
have aided his argument.
We conclude that the midwife’s testimony alone was
“significant,” and “may” have affected the outcome of the
hearing. Colmenar, 210 F.3d at 971. If Flores-Rodriguez
had been given the chance to present testimony from the
midwife, and the IJ found her credible regarding either the
actual circumstances of Flores-Rodriguez’s birth or the
consistency of the story he had been told, the IJ may have
reconsidered his determination that Flores-Rodriguez could
not and did not believe he was a United States citizen in
2010. This is supported by the fact that the IJ wrote in his
written decision that “[t]he claim that [Flores-Rodriguez]
1 Although Flores-Rodriguez’s wife was in fact able to provide some
insight on the matter, it seems clear based on conversations in the record
that Flores-Rodriguez and his attorney had not intended for or prepared
her to testify on the subject.

-- 13 of 15 --

14 FLORES -RODRIGUEZ V. GARLAND
was born with the assistance of a ‘midwife’ in Elko does not
withstand scrutiny, particularly where the ‘midwife’ was a
family friend accessible to the respondent, if he wanted to
verify the circumstances of his birth.” This implies that if
Flores-Rodriguez had asked the midwife about his birth, he
would have heard a different story than the one presented at
the hearing. But that is unsupported speculation. It is at least
as plausible that if Flores-Rodriguez had asked the midwife
to “verify the circumstances of his birth,” she would have
repeated the story about his home delivery in Elko. The
midwife’s testimony could have provided evidence of what
she would actually say about the circumstances of Flores-
Rodriguez’s birth.
The IJ’s failure to put Flores-Rodriguez on notice of this
central issue in his case denied him “a full and fair hearing”
by preventing him from submitting significant testimony and
other evidence. Colmenar, 210 F.3d at 971. Because the
IJ’s conduct potentially affected the outcome of the
proceedings, Flores-Rodriguez has also suffered prejudice.
Id. For these reasons, a due process violation warranting
reversal has occurred.
We express no opinion whether, if Flores-Rodriguez had
received notice and defended against the claim that he had
made false claims of citizenship, he would have likely
prevailed or to the contrary been held inadmissible. But
what is of signal importance in our system of justice is that
when a person is charged with a crime or charged with
allegations warranting removal from the country, that person
is fairly entitled to notice of the claims against him and an
opportunity to be heard in opposition. Because that
opportunity was not given here, we grant the petition and
remand to the BIA with instructions that it hold whatever

-- 14 of 15 --

FLORES -RODRIGUEZ V . GARLAND 15
future proceedings are necessary to ensure due process is
given to Flores-Rodriguez before decision is made.
PETITION FOR REVIEW GRANTED.

-- 15 of 15 --