Perez-Mejia v. HolderPerez-Mejia v. Holder
ORDER GRANTING LEAVE TO FILE AMICUS BRIEF, AMENDING OPINION AND DENYING PETITIONS FOR REHEARING AND REHEARING EN BANC AND AMENDED OPINION
Before: A. Wallace Tashima and Raymond C. Fisher, Circuit Judges, and Mark L. Wolf, District Judge.*
Opinion by Chief Judge Wolf
*The Honorable
COUNSEL
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.
The opinion filed April 21, 2011, and appearing at 641 F.3d 1143 (9th Cir. 2011), is AMENDED. An amended opinion will be filed concurrently with this order.
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
Perez-Mejia argues that the government failed to meet its burden of proving that he was removable because the BIA and the IJ were not permitted to rely on his counsel’s admissions. He also asserts that a criminal docket from his 1997 conviction that was introduced into evidence by the government was insufficient to establish that he was removable because the document did not indicate what substance he possessed for sale. Additionally, Perez-Mejia contends that the government is estopped from removing him on the basis of his 1997 conviction because it knew about the conviction when it granted him Legal Permanent Resident (“LPR”) status in 2003. Finally, he argues that he is eligible for a waiver of inadmissibility because his 1997 conviction predated his admission as an LPR in 2003.
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 asserted that he was “convicted in the Superior Court of Los Angeles, County of Los Angeles, State of California, for the offense of, Possession for Sale of a Controlled Substance, to wit: Cocaine, in violation of Section 11351 of the California Health and Safety Code, a Felony.”1 The NTA charged that Perez-Mejia was removable pursuant to
Removal proceedings commenced before the IJ on January 12, 2005. However, the proceedings were continued after Perez-Mejia’s
When the removal proceedings resumed on May 12, 2005, Perez-Mejia was again represented by counsel.2 In a colloquy
with the IJ, Perez-Mejia stated that his attorney was authorized to speak on his behalf. The following exchange then took place between the IJ and Perez-Mejia’s counsel:
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.
The admission to allegation four in the NTA was an admission that Perez-Mejia had been convicted in 1997 of possessing cocaine with intent to sell it in violation of California law.
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
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 from a mistake by DHS and, therefore, that the government was not estopped from declaring Perez-Mejia to be inadmissible. Perez-Mejia’s counsel did not offer any evidence or argument to refute this conclusion.
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 on his 1997 conviction as a basis for removal and that the IJ erred in finding Perez-Mejia ineligible for a
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 him removable. Second, Perez-Mejia argues that the government is estopped from removing him on the basis of a conviction about which it knew when it granted him LPR status in 2003. Finally, Perez-Mejia asserts that he is eligible for a
These are questions of law over which we have jurisdiction, see
A. Removability
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 of proof. 508 F.3d 899, 905 (9th Cir. 2007). Similarly, in Shin, we held that “where the alien concedes removability, ‘the government’s burden in this regard is satisfied.’” 547 F.3d at 1024 (quoting Estrada v. INS, 775 F.2d 1018, 1020 (9th Cir. 1985)). The instant case presents an opportunity to clarify when an alien’s admissions may be considered and render him removable.
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,
her removability under the charges contained therein.”
The import of the regulation has been recognized by the Second Circuit. See Hoodho, 558 F.3d at 190-92; Roman, 553 F.3d at 186-87. In essence, if the IJ is satisfied by the alien’s admissions and concession of removability during the pleading stage, the relevant issues are resolved and the proceedings do not enter the evidentiary stage in which disputed questions of removability are decided based on admissible evidence.
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 required to apply the modified categorical approach to his prior conviction, the Second Circuit held:
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
As we have also held, in certain circumstances an alien’s admissions may not be used to establish removability. See, e.g., S-Yong, 600 F.3d at 1035-36; Huerta-Guevara, 321 F.3d at 887-88. These decisions, too, are consistent with
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
[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
satisfied that Perez-Mejia’s admissions and concessions obviated the need to take evidence pursuant to
If the matter had proceeded to the
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
sidered in this case. After making the relevant admissions and concessions, and designating Mexico as the country to which Perez-Mejia should be deported, his counsel did not discuss, let alone dispute, the adequacy of the proof of removability. Rather, he requested a
[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 believe that his conviction involved any substance other than cocaine.
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
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 beyond mere negligence; even then, estoppel will only apply where the government’s wrongful act will cause a serious injustice, and the public’s interest will not suffer undue damage by imposition of the liability.” Morgan v. Gonzales, 495 F.3d 1084, 1092 (9th Cir. 2007) (quoting Watkins, 875 F.2d at 707). Moreover, a party cannot obtain estoppel against the government if he did not lose any rights to which he was entitled. Id.
“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-mative concealment.” Watkins, 875 F.2d at 707. “[T]he negligent provision of misinformation” by immigration officials does not constitute affirmative misconduct. Sulit v. Schiltgen, 213 F.3d 449, 454 (9th Cir. 2000). The evidence suggests no more than such negligence in this case.
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
Quoting the statute,
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.
ple possession of 30 grams or less of marijuana.”
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