Perez-Mejia v. Holder
2011 U.S. App. LEXIS 8180
9th Cir.2011Background
- Perez-Mejia, a Mexican national and LPR since 2003, faced removal proceedings based on a 1997 California conviction for possessing cocaine for sale.
- During an adjustment of status process, DHS noted the conviction; Perez-Mejia later departed US in 2004 and reentered as a returning LPR, triggering removal proceedings in 2005.
- At the pleading stage under 8 C.F.R. § 1240.10, Perez-Mejia’s counsel admitted the four NTA allegations and that Perez-Mejia was removable due to the 1997 conviction, and the IJ accepted the admissions.
- The government later submitted the 1997 docket; the IJ moved to an evidentiary phase but ultimately relied on the pleadings to conclude removability and designated Mexico as the country of removal.
- The IJ denied a § 1182(h) waiver, concluding the offense was a state drug offense and Perez-Mejia was ineligible; the Board affirmed removability and waiver denial, and the petition for review followed.
- Perez-Mejia contends admissions cannot establish removability under a potential modified categorical approach, that estoppel should apply due to DHS’s earlier LPR grant, and that pre-LPR conviction should permit a § 1182(h) waiver.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether admissions at pleading stage suffice for removability without the modified categorical approach | Perez-Mejia argues admissions are insufficient under modified categorical approach. | Government argues admissions bind and establish removability. | Admissions bind; removability established. |
| Whether the government is estopped from removing Perez-Mejia due to DHS’s 2003 LPR grant | DHS decision was affirmative misconduct, so estoppel applies. | No affirmative misconduct; estoppel not warranted. | No estoppel; government not barred. |
| Whether Perez-Mejia was eligible for a § 1182(h) waiver given the 1997 conviction | Conviction predates LPR status, so waiver should be available. | Waiver unavailable because offense was a state drug offense; later ineligibility applies. | Ineligible for § 1182(h) waiver. |
| Whether the record supports removability based on a cocaine-for-sale conviction | Record insufficient to prove federal removable offense. | Record (NTA and admissions) establishes drug offense and removability. | Removability properly established. |
| Whether the government could rely on the admission despite potential need for § 1240.10(d) processing | Admission should be scrutinized; evidentiary stage required for reliability. | Admissions at pleading stage binding; no further evidentiary need. | Plea-stage admissions binding; no further evidentiary need. |
Key Cases Cited
- Hoodho v. Holder, 558 F.3d 184 (2d Cir. 2009) (pleading-stage admissions binding; §1240.10 analysis)
- Roman v. Mukasey, 553 F.3d 184 (2d Cir. 2009) (admissions binding; §1240.10(c) framework)
- Barragan-Lopez v. Mukasey, 508 F.3d 899 (9th Cir. 2007) (admission to facts can bind; removability upheld at pleading stage)
- Shin v. Mukasey, 547 F.3d 1019 (9th Cir. 2008) (government burden satisfied by conceding removability)
- S-Yong v. Holder, 600 F.3d 1028 (9th Cir. 2010) (modified categorical approach; limited to record of conviction)
- Tokatly v. Ashcroft, 371 F.3d 613 (2d Cir. 2004) (modified categorical approach framework solicitation)
- Huerta-Guevara v. Ashcroft, 321 F.3d 883 (9th Cir. 2003) (insufficient record requires evidentiary stage)
- Selimi v. INS, 312 F.3d 854 (7th Cir. 2002) (counsel admissions may be binding in removal)
- American Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224 (9th Cir. 1988) (judicial admissions binding)