BARBARITO PEREZ-MEJIA, Petitioner, v. ERIC H. HOLDER JR., Attorney General, Respondent.
No. 07-70118
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
April 21, 2011
Amended Opinion Filed November 23, 2011
641 F.3d 1143
Agency No. A073-845-546. FOR PUBLICATION. On Petition for Review of an Order of the Board of Immigration Appeals. Argued and Submitted February 11, 2011—Pasadena, California.
Opinion by Chief Judge Wolf
*The Honorable Mark L. Wolf, Chief United States District Judge for the District of Massachusetts, sitting by designation.
Raul Gomez and Araceli S. Perez-Brizo (argued), Law Office of Raul Gomez, Los Angeles, California, for the petitioner.
James E. Grimes, United States Department of Justice, Civil Division, Washington, D.C., for the respondent.
ORDER
The motion for leave to file an amicus brief in support of the petitioner’s petition for rehearing, filed by Northwest Immigrant Rights Project on August 1, 2011, is GRANTED.
With this action, the panel has voted to deny the petition for panel rehearing. Judge Fisher has voted to deny the petition for rehearing en banc and Judges Tashima and Wolf have so recommended.
The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc.
The petition for panel rehearing and the petition for rehearing en banc are DENIED.
No further petitions for rehearing will be accepted.
OPINION
WOLF, Chief District Judge:
Petitioner Barbarito Perez-Mejia petitions for review of a decision of the Board of Immigration Appeals (“BIA”) dismissing an appeal from an order of removal to Mexico. At the outset of the removal proceedings before an Immigration Judge (“IJ”), Perez-Mejia’s counsel admitted that Perez-Mejia had been convicted in 1997 of possession of cocaine for sale in violation of California Health and Safety Code section 11351 and conceded that he was removable as a result. On that basis, the BIA found that Perez-Mejia was removable under
Perez-Mejia argues that the government failed to meet its burden of proving that he was removable because the BIA and
For the reasons stated below, the petition is being denied.
I. FACTUAL AND PROCEDURAL BACKGROUND
At the time of the proceedings before the IJ, Perez-Mejia was a thirty-six-year-old native and citizen of Mexico. He was married to an United States citizen, with whom he had two children. In 1997, Perez-Mejia was convicted of possessing a narcotic for sale under
In 2004, Perez-Mejia departed the United States. When he returned, Perez-Mejia applied for admission into the United States as a returning LPR at the Los Angeles International Airport. However, an immigration officer noted Perez-Mejia’s 1997 conviction and initiated removal proceedings against him.
On December 10, 2004, Perez-Mejia was served with a notice to appear (“NTA”). The fourth allegation in the NTA
Removal proceedings commenced before the IJ on January 12, 2005. However, the proceedings were continued after Perez-Mejia’s counsel informed the IJ that he intended to collaterally attack Perez-Mejia’s state court conviction. When the proceedings resumed on May 3, 2005, the government provided the IJ with a copy of the criminal docket from Perez-Mejia’s 1997 criminal case. The docket indicated that Perez-Mejia was convicted of “POSS NARC CNTRL SUBST FOR SALE” in violation of
When the removal proceedings resumed on May 12, 2005, Perez-Mejia was again represented by counsel.2 In a colloquy
The Court: Counsel, ready to go forward with pleadings?
Petitioner’s Counsel: Yes, Your Honor. . . .
The Court: Concede he was properly served with the NTA?
Petitioner’s Counsel: Yes, Your Honor.
The Court: Have you explained the nature of these proceedings to him?
Petitioner’s Counsel: Yes, I have.
The Court: Waive formal reading of the NTA?
Petitioner’s Counsel: Yes, Your Honor.
The Court: On behalf of your client, how do you pleads [sic] to the four allegations and the one charge of removability?
Petitioner’s Counsel: We concede the allegations, Your Honor.
The Court: I’m sorry, do you admit allegations 1 through 4?
Petitioner’s Counsel: Yes, Your Honor.
The Court: And do you concede removability?
Petitioner’s Counsel: Yes, Your Honor.
After these admissions and the concession of removability, the IJ noted that he had been given a copy of the criminal docket from Perez-Mejia’s 1997 criminal conviction. The IJ asked Perez-Mejia’s counsel if “that’s why you conceded or admitted . . . allegation 4” of the NTA, concerning his 1997 conviction. Perez-Mejia’s counsel responded affirmatively. The IJ next inquired whether Perez-Mejia wanted to designate a country to which to be deported and Perez-Mejia’s counsel selected Mexico. The IJ then asked what relief Perez-Mejia was seeking. Perez-Mejia’s counsel stated that he planned to apply for a waiver of inadmissibility pursuant to
The final hearing before the IJ was held on July 8, 2005. The IJ stated that Perez-Mejia had “admitted all allegations” and “conceded removability.” Perez-Mejia’s counsel then agreed that he “want[ed] to go to the relief phase of the case” to address Perez-Mejia’s application for a waiver of inadmissibility under
The IJ then considered whether the government was estopped from removing Perez-Mejia on the basis of a conviction of which it was aware when Perez-Mejia applied for LPR status. The IJ expressed the view that Perez-Mejia had benefitted
Finally, the IJ considered Perez-Mejia’s application for voluntary departure. He concluded that Perez-Mejia was not eligible for such relief because his conviction qualified as an aggravated felony, as defined in
In his final decision, the IJ stated that Perez-Mejia “admitted all allegations” and that “[b]ased on [Perez-Mejia’s] admissions . . . removability has been established by clear, convincing and unequivocal evidence.” The IJ also stated that Perez-Mejia “conceded removability” and, therefore, removability was “not an issue in this case.” Id. The IJ then noted that the government had submitted a criminal record that showed Perez-Mejia had been convicted of possession for sale of a narcotic substance in violation of
When discussing Perez-Mejia’s application for a
Perez-Mejia timely appealed to the BIA. In his brief, Perez-Mejia argued that the government was estopped from relying
The BIA adopted the IJ’s decision and added its own analysis. It first found that Perez-Mejia was removable “in light of the record of conviction and, more particularly, since [Perez-Mejia] conceded the charge.” Next, the BIA rejected Perez-Mejia’s estoppel argument “for several reasons.” The BIA noted that Perez-Mejia could not meet his burden of establishing affirmative misconduct beyond mere negligence, as required by Watkins v. U.S. Army, 875 F.2d 699, 707 (9th Cir. 1989) (en banc). With regard to Perez-Mejia’s argument that the IJ erred in finding him ineligible for a
Following the BIA’s decision, Perez-Mejia timely filed this petition for review.
II. DISCUSSION
Perez-Mejia presents three arguments on appeal. First, he contends that the government did not meet its burden of proving that he was removable because an alien’s admissions alone cannot establish removability and because the criminal docket from his 1997 conviction was insufficient to establish that he possessed for sale a controlled substance that renders
These are questions of law over which we have jurisdiction, see
As indicated earlier, Perez-Mejia claims that the government failed to meet its burden of proving that he was removable. He argues that the statute under which he was convicted,
[1] However, the rule against relying on an alien’s admissions does not apply universally. In Barragan-Lopez v. Mukasey, we held that an alien’s admissions to “each factual allegation” against him “constitute[d] clear, convincing, and unequivocal evidence” that satisfied the government’s burden
As explained below, admissions by an alien to facts alleged in an NTA, and concessions of removability, made in the
More specifically, removal proceedings are conducted pursuant to a regulation,
In Hoodho, counsel for an alien “conceded the truth of the factual allegations [in the NTA and] conceded that he [was] removable as charged.” 558 F.3d at 188 (some alterations original). Despite these concessions, the alien argued on appeal that he was not removable. Id. The BIA rejected the alien’s appeal on the basis that he was bound by his attorney’s concessions. Id. The Second Circuit agreed that the alien was bound by his attorney’s statements where the record did not “plainly contradict the concession.” Id. at 187. The court noted that “the acceptance by an IJ of a plausible concession of removability is an unremarkable feature of removal proceedings.” Id. It stated that “[a] petitioner cannot disavow that concession because, in hindsight, it might have been preferable for him to have contested removability, rather than to have conceded it.” Id. The Second Circuit held that admissions made by an alien’s counsel during the pleading stage may be accepted “so long as the IJ ‘is satisfied that no issues of law or fact remain.’” Id. at 190 (quoting
The Second Circuit also rejected the alien’s argument that the IJ was required to inspect the alien’s conviction record to confirm that there was a factual basis for his admissions. Id. at 191-92. In response to the alien’s argument that the IJ was
The IJ did not have occasion to apply the modified categorical approach to [the alien’s] conviction . . . because [the alien] conceded removability . . . . In so doing, [the alien] did not press the government to develop the record in support of an inquiry along the lines specified by the modified categorical approach, nor did [the alien] request that the IJ make such a determination. Indeed, his concession obviated the need for such efforts on the part of the government and the IJ.
Id. at 190 (citing Selimi v. INS, 312 F.3d 854, 860 (7th Cir. 2002)).
[2] In another case decided shortly before Hoodho, the Second Circuit addressed facts comparable to those in this case and held that the IJ was permitted to rely on counsel’s admissions and concession made during the pleading stage. In Roman, an alien with LPR status applied for admission to the United States at an airport. See 553 F.3d at 185-86. Removal proceedings were commenced against him because he had been convicted of a New York State drug crime. Id. At his initial removal hearing, the alien’s counsel admitted the factual allegations in the NTA and conceded that the alien was removable. Id. at 186. He then obtained several continuances to afford time to collaterally attack the alien’s state court conviction. Id. Considering the question of whether “the IJ was prohibited from relying on [the alien’s] own admissions (through his attorney) as the sole evidence establishing removability based on a prior conviction,” the Second Circuit held that the IJ’s actions “were explicitly authorized by
Although decisions in this Circuit do not reference
Similarly, in Barragan-Lopez, an alien admitted the factual allegations contained in the NTA during the pleading stage, including the allegation that he had been convicted of solicitation to possess marijuana for sale, but challenged the legal conclusion that the conviction rendered him removable. See 508 F.3d at 902, 905. Because removability was contested, the proceedings entered the evidentiary stage. Id. at 902. The IJ applied the categorical approach to the undisputed facts and found that the statute under which the alien was convicted was categorically a removable offense. Id. On appeal, the alien argued that the government had not satisfied its burden of establishing that he was removable. Id. at 905. We rejected the claim, holding that the alien’s admission to “each factual allegation considered by the IJ and the Board for removal” was conclusive concerning the facts and found no error in the application of the categorical approach to find that the alien was removable. Id. Therefore, Barragan-Lopez is consistent with
As we have also held, in certain circumstances an alien’s admissions may not be used to establish removability. See,
In S-Yong, the NTA charged that the alien had been convicted of a drug crime under
In S-Yong, the alien’s pleading-stage admission to the charge in the NTA did not establish all of the facts necessary to determine whether he was removable because:
California law regulates the possession and sale of many substances that are not regulated by the [federal Controlled Substances Act] and therefore . . . Section 11379 is “categorically broader” than Section 1227(a)(2)(B)(i) of the INA. This means that a conviction under Section 11379 does not necessarily entail a “controlled substance offense” under Section 1227(a)(2)(B)(i) of the immigration statute, and we must look further to determine whether Yong’s conviction renders him removable.
Id. at 1034 (citations omitted). Accordingly, it was necessary for the IJ to proceed to the
Similarly, in Huerta-Guevara, the NTA alleged that the alien had been convicted of possession of a stolen vehicle under Arizona law and charged that the crime was a removable “theft offense.” 321 F.3d at 885-86. However, the Arizona statute criminalized some conduct that would not render the alien removable and the NTA did not specify under what section of the statute the alien was convicted. Id. at 885-86, 887. Accordingly, when the alien admitted, during the pleading stage of her removal proceedings, that “she understood the charge [in the NTA] and was not denying it,” more evidence was required to determine whether the alien’s conviction was for a removable offense. Id. at 886. Thus, the proceedings moved from the pleading stage to the evidentiary stage. The government responded by introducing a conviction record that the IJ accepted as conclusive of removability. However, on appeal that record was found to be insufficient to establish that the alien was convicted of a theft offense. See id. at 886-87. The government attempted to salvage its case by asking this court to consider statements in the alien’s brief on appeal to the BIA. Id. at 888. The government argued that the alien’s description of her conduct in the brief established her removability. Id. We disagreed, holding that even assuming, without deciding, that statements in the alien’s brief could be consid-
[3] In view of the foregoing, we conclude that
[4] In view of the foregoing, the BIA properly concluded that Perez-Mejia was removable. In contrast to the NTA in S-Yong, the NTA here expressly stated that Perez-Mejia was convicted of possessing cocaine for sale. It is undisputed that cocaine is a prohibited drug under the Controlled Substances Act. See
[5] Perez-Mejia’s counsel also conceded that the admitted facts rendered Perez-Mejia removable. This concession was correct as a matter of law. See
The IJ’s question about whether Perez-Mejia was admitting the allegation that he was convicted of possessing cocaine because of the record of conviction that the IJ had received does not indicate that the IJ was dissatisfied with the admission to the factual allegations or the concession of removability and moving from the
If the matter had proceeded to the
However, no such additional statements were made or con-
instance be the country designated by the respondent, except as otherwise provided under section 241(b)(2) of the Act, and shall afford him or her an opportunity then and there to make such designation. The immigration judge shall also identify for the record a country, or countries in the alternative, to which the alien’s removal may be made pursuant to section 241(b)(2) of the Act if the country of the alien’s designation will not accept him or her into its territory, or fails to furnish timely notice of acceptance, or if the alien declines to designate a country. In considering alternative countries of removal, acceptance or the existence of a functioning government is not required with respect to an alternative country described in section 241(b)(1)(C)(i)-(iii) of the Act or a removal country described in section 241(b)(2)(E)(i)-(iv) of the Act. See
[6] In essence, it appears that Perez-Mejia’s counsel decided that Perez-Mejia could not, even under the modified categorical approach, successfully contest the fact that Perez-Mejia had been convicted of possessing cocaine for sale and, therefore, was removable. Instead, he decided to seek relief from removal. As the Seventh Circuit has written, “[c]oncessions of this sort, often motivated by tactical and pragmatic considerations, are routinely made in immigration proceedings.” Selimi, 312 F.3d at 860; see also Roman, 553 F.3d at 187 (admission made as tactical decision by counsel is binding). As the Seventh Circuit concluded in the context of excludability, having formally admitted that he was removable, Perez-Mejia cannot now contend that the government’s proof of his removability was insufficient. See Selimi, 312 F.3d at 860; see also Hoodho, 558 F.3d at 190-91; Roman, 553 F.3d at 185-86; Barragan-Lopez, 508 F.3d at 905; Shin, 547 F.3d at 1024.
In his petition for rehearing, Perez-Mejia contends that the IJ improperly accepted his admission to the factual allegations in the notice to appear because those allegations were “plainly contradicted by record evidence.” Hoodho, 558 F.3d at 192. He argues that the IJ had reason to believe that his admission was in error because the criminal docket, in contrast to the notice to appear, did not identify the controlled substance involved in his prior drug conviction. We disagree that Perez-Mejia’s admissions were contradicted by the record. The docket was silent on the identity of the controlled substance involved in the offense, so it did not contradict the notice to appear. Therefore, Perez-Mejia has given us no reason to
The petition for rehearing also argues that, regardless of any admissions and concessions offered by an alien at the pleading stage of removal proceedings, the government must always present clear and convincing evidence of the alien’s removability independent of the alien’s admissions. See
The petition for rehearing further argues that we should set aside the IJ’s determination that Perez-Mejia was convicted of a controlled substance offense because that determination was legally erroneous. Perez-Mejia is correct that we may set aside a determination by the IJ that rests on an alien’s erroneous concession, at least in some circumstances. See Mandujano-Real v. Mukasey, 526 F.3d 585, 588 (9th Cir. 2008) (“The Government does not argue, nor could it, that the IJ’s reliance on [the alien’s] concession would suffice as a basis for removal if the BIA or the court were to determine that his conviction does not, as a matter of law, constitute an aggravated felony.”); Garcia-Lopez v. Ashcroft, 334 F.3d 840, 844 n.4 (9th Cir. 2003) (holding that an alien was not bound
B. Estoppel
Perez-Mejia also argues that the government is estopped from using his 1997 conviction as a basis for removal because DHS knew about the conviction when it granted him LPR status in 2003. This contention is incorrect.
[7] “It is well settled . . . that the government may not be estopped on the same terms as a private litigant.” Watkins, 875 F.2d at 706. “A party seeking to raise estoppel against the government must establish affirmative misconduct going
“There is no single test for detecting the presence of affirmative misconduct; each case must be decided on its own particular facts and circumstances. Affirmative misconduct does require an affirmative misrepresentation or affirmative concealment of a material fact by the government, although it does not require that the government intend to mislead a party.” Watkins, 875 F.2d at 707 (citations omitted).
If a litigant survives this initial inquiry, the court considers four elements to determine if the government is estopped:
“(1) the party to be estopped must know the facts; (2) he must intend that his conduct shall be acted on or must so act that the party asserting the estoppel has a right to believe it is so intended; (3) the latter must be ignorant of the true facts; and (4) he must rely on the former’s conduct to his injury.”
Morgan, 495 F.3d at 1092 (quoting Watkins, 875 F.2d at 709).
[8] Both the IJ and the BIA characterized the decision by DHS to grant Perez-Mejia LPR status in 2003 as a “mistake.” This was not an erroneous conclusion. It was Perez-Mejia’s burden to prove that the decision to grant him LPR status was affirmative misconduct by DHS. See id. Perez-Mejia offered no evidence of such misconduct, but rather relied on the fact that he obtained LPR status when he should have been denied it. He now points to nothing in the record that suggests that DHS engaged in any “affirmative misrepresentation or affir-
Moreover, Perez-Mejia “lost no rights to which [he] was entitled under the immigration laws.” Santiago v. INS, 526 F.2d 488, 493 (9th Cir. 1975) (en banc). Perez-Mejia concedes that he was ineligible for LPR status when he applied for it and does not contend that obtaining it deprived him of any rights. See id. at 491-93 (failure to inform aliens that their entry into United States was unlawful did not deprive them of opportunity to depart and attempt to return lawfully).
[9] In essence, the evidence only indicates that the government was negligent in improperly granting Perez-Mejia LPR status. Perez-Mejia benefitted from that error. The government was not estopped from correcting the mistake when it was discovered.12
C. Eligibility for Waiver of Inadmissibility
Finally, Perez-Mejia argues that the IJ erred in denying his application for a waiver of inadmissibility under
However, the BIA found that he was ineligible for a
[10] Where, as here, an alien is charged with being removable on the basis of a conviction for a controlled substance offense,
(1) . . .
(B) in the case of an immigrant who is the spouse, parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the alien’s denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien . . . .
No waiver shall be granted under this subsection in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if either since the date of such admission the alien has been convicted of an aggravated felony or the alien has not lawfully resided continuously in the United States for a period of not less than 7 years immediately preceding the date of initiation of proceedings to remove the alien from the United States. No court shall have jurisdiction to review a decision of the Attorney General to grant or deny a waiver under this subsection.
III. CONCLUSION
By admitting at the pleading stage that he was convicted of possessing cocaine for sale and conceding that he was, therefore, removable, Perez-Mejia relieved the government of its burden of offering further evidence to prove that he was removable. The government is not estopped by its error in granting Perez-Mejia LPR status from correcting its mistake and ordering his removal. Perez-Mejia’s admission to the cocaine offense made him ineligible for a waiver of removability under
DENIED.
MARK L. WOLF
CHIEF DISTRICT JUDGE