Perez-Mejia v. Holder
663 F.3d 403
| 9th Cir. | 2011Background
- Perez-Mejia, a Mexican national, was convicted in 1997 for possession for sale of cocaine under California Health and Safety Code § 11351.
- He was granted legal permanent resident status in 2003 despite the 1997 conviction and later left the U.S. and reentered as a returning LPR, triggering removal proceedings in 2004.
- An NTA alleged removability under 8 U.S.C. § 1182(a)(2)(A)(i)(II) based on the drug offense; the NTA asserted removal and cited the conviction record as support.
- At the pleading stage in 2005, Perez-Mejia's counsel admitted the allegations and that Perez-Mejia was removable, with the IJ accepting the admissions.
- The IJ allowed continuances to pursue collateral attacks on the conviction; later, the IJ concluded Perez-Mejia was ineligible for a § 1182(h) waiver and for voluntary departure, and addressed estoppel.
- The BIA affirmed removability, rejected estoppel, and held the § 1182(h) waiver ineligible because the offense was a state drug offense, not simple possession of marijuana.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether admissions at pleading stage establish removability under the modified categorical approach | Perez-Mejia argues admissions alone cannot prove removability when the record lacks the substance identity. | Government contends admissions at pleading stage can establish removability when supported by the NTA and record. | Admissions may establish removability at pleading stage; no further evidence required. |
| Whether the government is estopped by DHS's mistaken grant of LPR status | Perez-Mejia asserts estoppel due to government knowledge of the conviction when LPR was granted. | Government contends there was no affirmative misconduct and no loss of rights; negligent error does not create estoppel. | No estoppel against the government; mistake was negligent and Perez-Mejia benefitted, but rights were not forfeited. |
| Whether Perez-Mejia is eligible for a § 1182(h) waiver given pre-admission conviction | Conviction predating LPR status should not render ineligible if pre-admission. | BIA properly denied waiver because offense was a controlled-substance offense, not simple possession of marijuana. | Ineligible for waiver due to offense being a controlled-substance offense; pre-admission timing is irrelevant. |
| Whether the IJ correctly applied the evidentiary framework for removability based on admissions | Admission may be erroneous or contradicted by record evidence; reliance on admissions could be improper. | Admissions were not plainly contradicted; the IJ was within the framework of 8 C.F.R. § 1240.10. | Correct reliance on pleading-stage admissions; no plain error in applying the framework. |
Key Cases Cited
- Barragan-Lopez v. Mukasey, 508 F.3d 899 (9th Cir. 2007) (admissions can satisfy burden when removability conceded if no issues remain)
- Shin v. Mukasey, 547 F.3d 1019 (9th Cir. 2008) (government burden satisfied when alien concedes removability)
- Hoodho v. Holder, 558 F.3d 184 (2d Cir. 2009) (pleading-stage admissions may bind the alien; review of whether misstate occurred)
- Roman v. Mukasey, 553 F.3d 184 (2d Cir. 2009) (admissions by counsel at pleading stage can be binding on client)
- S-Yong v. Holder, 600 F.3d 1028 (9th Cir. 2010) (modified categorical approach; narrow documents; cannot rely on post-pleading statements)
- Tokatly v. Ashcroft, 371 F.3d 613 (2d Cir. 2004) (defines modified categorical approach as narrow, record-based inquiry)
- Huerta-Guevara v. Ashcroft, 321 F.3d 883 (9th Cir. 2003) (limits on reliance on broad or ambiguous records for removability)
- Mandujano-Real v. Mukasey, 526 F.3d 585 (9th Cir. 2008) (limits of considering alien-conduct characterizations when purely legal questions arise)