Wenjin Liang v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 25 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WENJIN LIANG, No. 21-70736
Petitioner, Agency No. A205-172-929
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 12, 2022
Pasadena, California
Before: WATFORD and FRIEDLAND, Circuit Judges, and AMON,** District
Judge.
Wenjin Liang petitions for review of an order of the Board of Immigration
Appeals (BIA) denying his motion to terminate proceedings and affirming the
immigration judge’s decision denying his motion to reopen his in absentia removal
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Carol Bagley Amon, United States District Judge for
the Eastern District of New York, sitting by designation.
Page 2 of 4
order. We grant the petition, vacate the removal order, and remand to the agency
with instructions to grant Liang’s motion to terminate proceedings.
1. At Liang’s in absentia removal hearing, the government failed to carry its
“heavy burden” of proving that Liang was removable as charged by “clear,
unequivocal, and convincing evidence.” Cortez-Acosta v. I.N.S., 234 F.3d 476,
481 (9th Cir. 2000) (per curiam) (citations omitted); see 8 U.S.C.
§ 1229a(b)(5)(A). The government submitted three items of evidence at Liang’s
removal hearing: the notice to appear, a subsequent notice of hearing, and Liang’s
2012 asylum application. To support the charge of removability, the government
relies here only on the asylum application, in which Liang did not indicate that he
was currently attending Pacific States University in accordance with the terms of
his student visa. But in the absence of other substantive evidence, the government
cannot rely “solely upon the adverse inference drawn from . . . silence” to satisfy
its burden of proof. Urooj v. Holder, 734 F.3d 1075, 1078 (9th Cir. 2013)
(alteration in original) (citation omitted). This is particularly true in this case, as an
asylum application is “not designed to elicit” information about current school
attendance. See Bassene v. Holder, 737 F.3d 530, 536 (9th Cir. 2013) (rejecting as
unsupported an adverse inference predicated on petitioner’s omission, from his
citizenship application, of details of past persecution that the citizenship
application was not designed to elicit). No reasonable adjudicator could find that
Page 3 of 4
the government carried its burden to establish removability when it relied solely on
a single omission from an application designed for an entirely different purpose.
The BIA reached a contrary conclusion only by erroneously placing the
burden on Liang to prove that he was not removable as charged. The government
does not defend the BIA’s decision, but instead argues that we should remand the
case for the BIA to reconsider Liang’s argument that the government did not prove
removability. A remand would not be proper here. Counsel for the government
conceded at oral argument that the government would be precluded from offering
new evidence on remand to support the charge in the notice to appear. The
government had both an “ample opportunity to build the record” and “a full
opportunity to litigate” the issue but nonetheless failed to compile sufficient
evidence to prove Liang’s removability. Medina-Lara v. Holder, 771 F.3d 1106,
1118–19 (9th Cir. 2014). Under these circumstances, the government’s request for
a remand amounts to little more than an unwarranted request for another bite at the
apple—and a useless one, because it is clear that the record is insufficient to meet
the government’s burden, and the government has conceded it could not add to that
record. Id.Because we have concluded that the removability finding is not supported by
substantial evidence, the immigration judge lacked statutory authority to order
Liang removed in absentia and “the removal order must be vacated.” Al Mutarreb
Page 4 of 4
v. Holder, 561 F.3d 1023, 1031 (9th Cir. 2009). The government may issue a new
notice to appear on new charges supported by new evidence or changed factual
circumstances, but it may not relitigate a notice to appear that was subject to a final
judgment on the merits. Id. Accordingly, we remand with instructions to grant
Liang’s motion to terminate his removal proceedings. See Medina-Lara, 771 F.3d
at 1119.
PETITION FOR REVIEW GRANTED.