Heloyne Dos Santos v. U. S. Attorney General, 982 F.3d 1315

Background

Heloyne Dos Santos, a Brazilian national brought to the U.S. as a child, lived in the U.S. for decades and was arrested for DWI, prompting DHS removal proceedings.
Notice to Appear charged unlawful entry (8 U.S.C. § 1182(a)(6)(A)(i)) alleging entry at an unknown place/date without inspection.
At her first immigration-court appearance, through counsel Dos Santos admitted the Notice’s factual allegations and conceded removability; she later applied for asylum, withholding, and CAT relief and testified she entered on a tourist visa in 2002, but never sought to withdraw the concession.
The Immigration Judge found her removable as charged, denied asylum as untimely, and denied withholding and CAT relief on the merits.
On appeal to the BIA (with new counsel) Dos Santos submitted a passport and Form I-94, argued her admission was contradicted by the record and that she should instead be charged under § 1227 for overstaying; the BIA held her concessions binding, rejected her ineffective-assistance claim (Lozada noncompliance), and denied remand as the new evidence was not material.
The Eleventh Circuit affirmed: admissions bind a client absent "egregious circumstances," and Dos Santos failed to show the concession was incorrect, unfair, or the product of unreasonable professional judgment; remand denial for new evidence was not an abuse of discretion.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether counsel's concession of removability binds Dos Santos	Concession contradicted by record (passport/I-94 showing 2002 lawful admission); should be allowed to withdraw	Concession was a deliberate, binding judicial admission; later-record evidence is not necessarily mutually exclusive	Concessions bind clients; BIA reasonably found testimony and concession could both be true (possible later unlawful reentry); affirmed
Whether "egregious circumstances" permit withdrawal of a counseled concession	Concession was incorrect and therefore egregious because it charged the wrong ground for removal (should be overstay under §1227)	Even if concession was incorrect, Dos Santos cannot show it produced an unjust result or resulted from unreasonable professional judgment	No egregious circumstances shown; threshold incorrectness not compelled by record and neither unfairness nor unreasonable professional judgment established
Ineffective assistance / procedural compliance with Lozada	Counsel failed to investigate/explain options, visit client, apply for bond or other relief—counsel’s performance led to the concession	Dos Santos did not comply with Lozada before BIA; even if considered, no prejudice shown because she would be removable under §1227	BIA did not err; Lozada noncompliance bars the claim before the BIA, and in any event Dos Santos failed to show prejudice required for ineffective-assistance relief
Denial of motion to remand based on new evidence (passport, I-94)	New documentary evidence proves lawful 2002 admission and is material; warrants remand	Evidence is cumulative of prior testimony and not material because lawful admission is not mutually exclusive with later unlawful reentry	Denial of remand not an abuse of discretion: evidence was cumulative/not material and would not likely change the result

Key Cases Cited

Link v. Wabash R.R. Co., [citation="370 U.S. 626"] (party bound by acts of counsel)
Best Canvas Prods. & Supplies, Inc. v. Ploof Truck Lines, Inc., [citation="713 F.2d 618"] (admissions in pleadings bind litigants)
Savoury v. U.S. Att’y Gen., [citation="449 F.3d 1307"] (review limited to BIA decision unless it adopts IJ reasoning)
Adefemi v. Ashcroft, [citation="386 F.3d 1022"] (standard for viewing factual findings under substantial-evidence review)
Sepulveda v. U.S. Att’y Gen., [citation="401 F.3d 1226"] (substantial-evidence standard for reversing BIA factual findings)
INS v. Elias-Zacarias, [citation="502 U.S. 478"] (standard for when evidence compels different conclusion)
Cooper v. Meridian Yachts, Ltd., [citation="575 F.3d 1151"] (effect of concessions on the availability of countervailing evidence)
Guzman-Rivadeneira v. Lynch, [citation="822 F.3d 978"] (egregious-circumstances standard for withdrawing concessions)
Hanna v. Holder, [citation="740 F.3d 379"] (egregious-circumstances framework; inadvertent concessions/unjust results)
Santiago-Rodriguez v. Holder, [citation="657 F.3d 820"] (treatment of tactical concessions and when they may be rescinded)
Dakane v. U.S. Att’y Gen., [citation="399 F.3d 1269"] (prejudice requirement for ineffective assistance in removal proceedings)
Sow v. U.S. Att’y Gen., [citation="949 F.3d 1312"] (standard of review for denial of motion to reopen/remand)
Jiang v. U.S. Att’y Gen., [citation="568 F.3d 1252"] (materiality burden for new evidence on reopening)