Lead Opinion
Opinion by Judge BERZON; Dissent by Judge CALLAHAN.
OPINION
This case requires us to decide whether an alien in removal proceedings can withdraw his former attorney’s admission of the Government’s factual allegations when the propriety of the admission has been severely undercut by subsequent legal developments that may, in fact, mean that the admission was false.
FACTUAL AND PROCEDURAL HISTORY
Julio Cesar Santiago-Rodriguez (“Santiago”), a native and citizen of Mexico, lawfully entered the United States in 1991 and became a lawful permanent resident (“LPR”) in June 1999. In December 1999, Santiago returned to Mexico to marry his fiancée Maria Maravilla Romero (“Maravilla”); they wed on December 21, 1999 in Villamar, Mexico. Following the wedding, Santiago and Maravilla traveled to Chiapas to spend time with Santiago’s family.
At some point, Maravilla told Santiago that she would like to accompany him back to the United States — that is, to enter illegally. While the couple was in Chiapas, Santiago’s brother, Luis, told Santiago the same thing. Santiago attempted to discourage both from entering the United States illegally, but to no avail. Accordingly, on or about January 6, 2000, Santiago, Maravilla, and Luis flew from Chiapas to Juárez, Mexico, which abuts El Paso, Texas. Santiago purchased the airline tickets from Chiapas to Juárez for Mara-villa and himself, while Luis purchased his own ticket with money he borrowed from his aunt. While in Juárez, Santiago purchased a counterfeit 1-551 (typically called a “green card”) for Maravilla, and Luis purchased one for himself.
The following day, Santiago walked across the U.S.-Mexico border and proceeded to the offices of a travel agent in El Paso to meet up with his wife and brother, who had crossed the border with the aid of one or more coyotes (smugglers). Santiago testified that he did not pay the coyote(s), suggesting instead that Luis had done so. At the travel agency, Maravilla and Luis each purchased a ticket to fly to Los Angeles later that day. The record is unclear as to who purchased Maravilla’s ticket, but Luis purchased his own.
The three then proceeded to the El Paso airport. According to Santiago, two Border Patrol agents in cowboy hats approached him as he was looking at the TV monitors displaying gate information in the airport lobby.
Thereafter, all three were handcuffed and led into a small room, where they were advised of their Miranda rights, and their bags were searched. During the bag search, the agents found documents establishing that Maravilla and Luis’s I-551s were fake. Santiago stated that he had an attorney in Los Angeles, but was told that he could not talk to a lawyer until he had a hearing in immigration court. Santiago also was asked several questions about whether he had smuggled his brother and/or wife into the country. Santiago testified before the immigration judge (IJ) that he had a difficult time understanding the agent interrogating him, who spoke Spanish only haltingly. The record contains a document (a form I-215B) that purports to memorialize the interrogation, but the IJ disregarded it because she had concerns, including its lack of a certificate of translation, affecting its reliability.
Following the interview, Santiago was issued a Notice to Appear (NTA). The NTA alleged that Santiago had “knowingly encouraged, induced, assisted, abetted, or aided” his wife and brother to enter the United States illegally, and accordingly charged him with being removable under 8 U.S.C. § 1227(a)(1)(A)
Within seven to ten days after his arrest at the airport, and while he was still detained, Santiago met with Corine Dominguez, an El Paso-based attorney. They spoke for ten to twenty minutes, during which time, according to Santiago, Dominguez agreed “to defend [him]” and “to prove that [he] was innocent” in exchange for $200. Dominguez did not advise Santiago of the relief available to him and did not discuss admitting the allegations of the NTA or conceding the charges of removability.
Dominguez filed a motion for bond redetermination on January 18, 2000, requesting that Santiago’s bond be reduced and representing that Santiago would be applying for cancellation of removal. Santia
Dominguez’s bond redetermination motion was unsuccessful, but Santiago eventually paid the $5,000 bond. The record is silent as to when Santiago was released on bond, but he met with Connexion Legal (“Legal Connection”), a Los Angeles-based notario,
On February 22, 2000, the INS mailed a notice that it did not oppose Santiago’s first motion to change venue. Two days later, Dominguez, apparently unaware of that motion, hand delivered a second motion to change venue, along with a motion to withdraw as Santiago’s counsel, to the INS District Counsel in El Paso. This motion also states that Santiago “admits the allegations in the [NTA] and concedes that he is removable,” and contains the boilerplate representation that Santiago would be applying for “Political Asylum, Voluntary Departure and/or other relief from removal available to him under the Immigration Laws of the United States.”
The record is unclear as to which motion to change venue was granted or when it was granted, but Santiago’s master calendar hearing was held in Los Angeles on April 26, 2000. Santiago was represented at this hearing and the four that followed by attorney Xavier Vega. Vega’s services were apparently secured by Connexion Legal, to which Santiago paid $300 for each of Vega’s appearances. Santiago only met with Vega just prior to each hearing, for a few minutes each time.
The master calendar hearing was continued until May 24, 2000. At the continued hearing, the IJ noted that Santiago had admitted the allegations and conceded removability in a prior motion to change venue. Vega so acknowledged, but stated that he would be seeking a waiver of the grounds of removability under 8 U.S.C. § 1182(d)(ll). Section 1182(d)(ll) provides that certain aliens guilty of smuggling their spouses, parents, or children into this country can apply for a waiver of that ground of removability. See 8 U.S.C. § 1182(d)(ll); id. § 1227(a)(1)(E). The hearing was continued again until August 31, 2000, at which time Vega again acknowledged being aware of the conces
Santiago paid Connexion Legal to prepare his appeal to the BIA. Connexion Legal filed an appeal brief on Santiago’s behalf; again, Santiago was not asked to review the brief, and again, the document contains a signature that purports to be Santiago’s, but is not. The BIA dismissed Santiago’s appeal on February 12, 2002.
In January 2003, Santiago met with Ronald Matten, an attorney with the law firm that currently represents him. Mat-ten agreed to review Santiago’s file, which he did on February 5, 2003, discovering what he believed to be ineffective assistance of counsel. In preparation for filing a motion to reopen, Matten informed Dominguez by letter dated March 20, 2003 that he would be filing a complaint regarding her representation of Santiago. When Dominguez did not respond, Matten filed a complaint on Santiago’s behalf with the Texas Bar by letter dated April 16, 2003.
Matten filed the motion to reopen Santiago’s proceedings with the BIA on April 29, 2003. About a week later, the Government filed a Statement of Non-Opposition to the Motion to Reopen. The BIA granted the motion and remanded the case for further proceedings.
The reopened proceedings were convened before a different IJ on March 18, 2004. During this hearing, Matten told the IJ that Santiago was seeking to withdraw the prior plea; to deny the charges of removability; and to suppress the evidence obtained by the Government on the day Santiago was arrested in El Paso. The IJ continued the hearing to give Santiago time to file his motion to suppress.
At the beginning of the final hearing, the IJ summarily denied the motion to suppress and the motion to withdraw Santiago’s plea. When Santiago’s counsel protested, the IJ permitted Santiago to put on evidence regarding why he should be permitted to withdraw the admissions and concessions.
Santiago then testified as recited above. Following Santiago’s testimony and cross-examination, the IJ rendered her oral decision, which had two principal holdings:
In the alternative, the IJ held that even if Santiago could withdraw his plea, his testimony “is sufficient to find [him] removable as charged.”
Though the word “accommodating” is not in the statute, it does say “knowingly encouraged, induced, assisted, abetted, or aided.” The Court finds that the respondent did assist and abet the brother in traveling through Mexico, coming to the border, knowing full well the intentions of the brother, knowing that the brother did not have a ticket to return to Mexico, knowing [w]hat the brother’s intentions were, in leaving his wife in the company of the brother, knowing full well that the wife’s intentions were having made those accommodations. Therefore, the charge is sustained.
In light of her holding that Santiago had helped Luis enter illegally, the IJ declared Santiago removable as charged, determined him ineligible for any waiver, and ordered him removed.
Santiago timely appealed to the BIA, making the same arguments he presses here. Pursuant to 8 C.F.R. § 1003.1(e)(5), a single member of the BIA reviewed the appeal, which was dismissed in a per curiam order dated October 24, 2005. The BIA’s order stated, in relevant part:
We ... affirm the Immigration Judge’s application of Matter of Velasquez, 19 I. & N. Dec. 377 (BIA 1986), to the facts of the instant case, and we affirm her conclusion that there was no showing of “egregious circumstances” with respect to [Santiago’s] prior counsel’s concession to the charges of removability or the change of venue. Id. Finally, we affirm the Immigration Judge’s ultimate conclusion that the respondent did not suffer ineffective assistance of counsel.
The BIA, however, “declinefd] to address the remainder of the issues raised in [Santiago’] brief,” including that the IJ erred in holding, in the alternative, that Santiago’s testimony established that by “accommodating” Luis’s attempt to enter the country illegally, Santiago was removable as an alien smuggler and ineligible for a waiver of that ground of removability.
SCOPE & STANDARD OF REVIEW
“Where, as here, the BIA ‘has reviewed the IJ’s decision and incorporated portions of it as its own, we treat the incorporated parts of the IJ’s decision as the BIA’s.’ ” Blanco v. Mukasey,
“Questions of law, including claims of due process violations due to ineffective assistance, we review de novo.” Mohammed v. Gonzales,
DISCUSSION
To deport an alien, such as Santiago, who has been lawfully admitted to this country, the Government has the burden of establishing “by clear, unequivocal, and convincing evidence” that he is removable under one or more statutory grounds. Hernandez-Guadarrama v. Ashcroft,
Under certain circumstances, a factual admission made by an alien, or his attorney on his behalf, can satisfy the Government’s burden. By regulation, for example, the IJ must require the alien “to plead to the notice to appear by stating whether he or she admits or denies the factual allegations and his or her removability under the charges contained therein.” 8 C.F.R. § 1240.10(c).
Santiago does not contest that he helped smuggle his wife, and therefore does not seek to withdraw that admission.
In Velasquez, as here, the immigrant’s first attorney admitted the factual allegations in the charging document and conceded removability in a motion to change venue. See id. at 378. When the Government did not oppose the move, the motion was granted. See id. After the proceedings were commenced in the new venue, Velasquez (with the aid of a new attorney) denied the allegations. See id. at 379. The Government then introduced the motion to change venue as evidence of Velasquez’s removability. The IJ overruled Velasquez’s objections, admitted the evidence, and on that basis ordered him deported. See id.
On appeal, the BIA affirmed and set forth the general rule applicable here: “Absent egregious circumstances” — an exception we discuss in a moment — an attorney’s written admission “is binding on [the] alien client and may be relied upon as evidence of [removability]” when that admission is: (1) “distinct” and (2) “formal,” and made (3) “by an attorney acting in his professional capacity” (4) “as a tactical decision.” Id. at 382 (citations omitted).
We first consider whether the BIA erred in holding that Santiago could be bound by his lawyers’ admissions. The first two requirements are not met as to Vega. Although the IJ held that the “most important[]” reason for denying Santiago’s request to withdraw the admissions was that Vega had “reaffirmed” them, that’s just not so. As the IJ herself said, Vega merely acknowledged that he was aware that the concessions had already been made and that they made Santiago ineligible for a waiver. The IJ faulted Vega for not seeking to “withdraw the plea or challenge the sufficiency of the plea,” but those failures were omissions. Under Velasquez, an omission or failure to object cannot bind an alien because, by definition, neither is a “distinct and formal admission.” Velasquez, 19 I. & N. Dec. at 382. Santiago therefore never needed to be relieved of admissions or concessions made by Vega, as Vega never made any.
As to Dominguez, the first three of the Velasquez requirements are unquestionably met. Dominguez’s admissions were “distinct and formal, for they appear in a pleading filed with the immigration court,” and were made “at a time when [she] was [Santiago’s] official attorney of
But that is not the end of our inquiry, for Velasquez sets forth three types of “egregious circumstances” that, if present, justify relieving an alien of his attorney’s admissions, even when those admissions meet the previously-discussed criteria. Although not couched in constitutional terms, the “egregious circumstances” Velasquez identifies are all related to the due process guarantee that removal proceedings accord with fundamental fairness. To comply with due process, evidence relied on in removal proceedings must be probative and its use must be fundamentally fair. See Rojas-Garcia v. Ashcroft,
The first' circumstance in which an alien must be relieved of an admission of counsel is if binding him to that admission would “produce[ ] an unjust result.” Velasquez, 19 I. & N. Dec. at 383. An inadvertent admission would fall into this category. See, e.g., Ali v. Reno,
The second circumstance in which an alien is not bound by his counsel’s factual admissions or concession of removability is if the alien subsequently offers evidence proving that “the factual admissions and concession of [removability] were untrue or incorrect.” Velasquez, 19 I. & N. Dec. at 383; see, e.g., Mai v. Gonzales,
The third and final circumstance in which an alien can withdraw his attorney’s admissions is where such admissions “were the result of unreasonable professional judgment,” Velasquez, 19 I. & N. Dec. at 383—-i.e., ineffective assistance of counsel. If, for example, Dominguez admitted the allegations and conceded Santiago’s removability without a factual basis for doing so, that circumstance would justify disregarding the admissions. See, e.g., Matter of Morales-Bribiesca, No. A047 770 293,
On the other hand, in circumstances in which the attorney, after carefully weighing all the relevant facts and exploring the available legal options, decides that the best course of action is to admit the factual allegations and concede removability, it is unlikely that she rendered ineffective assistance, even if that decision appears unwise in hindsight. See, e.g., Torres-Chavez v. Holder,
Santiago has persuasive arguments that all three egregious circumstances are present here. Before addressing the particular egregious circumstances, we emphasize that what actions counted as alien smuggling was relatively unclear in this circuit until Altamirano,
The pr e-Altamirano ambiguity helps explain the IJ’s alternate holding— that even if Santiago could withdraw Dominguez’s admission, his testimony alone established that he had smuggled his brother by “accommodating” Luis’s attempt to enter the United States illegally. That said, if the IJ’s decision was inconsistent with Altamirano, then the IJ erred as a matter of law; it does not matter that Altamirano was decided after the IJ’s decision, because “[a] judicial construction of a statute is an authoritative statement of what the statute meant before as well as after the decision of the case giving rise to that construction.” Rivers v. Roadway Express,
Dominguez’s factual admission that Santiago was guilty of smuggling Luis necessarily incorporated the legal background applicable at the time — in particular, what facts were required, as a matter of law, to make one guilty of smuggling. As explained, Altamirano rendered “a change, or at least a significant clarification, of the law.” Huertar-Guevara,
But even though the BIA dismissed Santiago’s appeal a year after Altamirano was decided, it never acknowledged the change in the governing law and, in fact, refused to consider the IJ’s alternative holding that Santiago’s testimony demonstrated he was guilty of smuggling. Instead, the BIA dismissed Santiago’s appeal solely on the basis that Dominguez’s admission of the NTA’s fac
Additionally, although the BIA’s refusal to review the IJ’s alternate holding means we cannot consider its merits either, see Andia,
An important implication of the BIA’s refusal to consider the IJ’s alternative holding, then, is that it ordered Santiago removed on the basis of an admission that might be false. The BIA’s implicit, perhaps inadvertent, holding — that a legal permanent resident can be removed on the basis of a barebones admission made by an attorney in a written motion, despite record evidence demonstrating that the admission could be false due to changes in the legal landscape — is inconsistent with Velasquez and due process. Binding an alien to an erroneous factual admission of his attorney, and ordering him removed from this country on that basis, would “deprive[] [Santiago] of an[] opportunity to be heard, present evidence, [and to] press [his] case fully.” Torres-Chavez,
We turn, therefore, to the third “egregious circumstance”: whether Dominguez’s admission was the result of ineffective assistance of counsel.
We first consider whether Dominguez’s performance was deficient. As mentioned, the law regarding what actions constitute alien smuggling was somewhat ambiguous until Altamirano. Given the uncertain state of the law at the time, it would be difficult to fault Dominguez for admitting the NTA’s allegation that Santiago smuggled Luis if she had sufficient knowledge of the facts to make a strategic judgment based on the plausible statutory interpretations. See Torres-Chavez,
The serious consequences of the admission, moreover, were as clear then as they are now. The admission effectively denied Santiago the “opportunity to be heard, present evidence, [and to] press [his] case fully,” Torres-Chavez,
That conclusion is bolstered by other indicia of ineffective assistance, such as Dominguez’s assertion in the motion for bond redetermination that Santiago would be applying for a form of relief (cancellation of removal) for which he was ineligible; the boilerplate representation in the motion to change venue that Santiago would be applying for “Political Asylum, Voluntary Departure and/or other relief from removal available to him under the Immigration Laws of the United States;” and Dominguez’s failure to respond to the detailed complaint Santiago mailed her regarding her representation of him.
The prejudice to Santiago, moreover, is clear. In situations, such as this, where an attorney’s incompetence prevents an alien from presenting his case altogether, “the proceedings are subject to a ‘presumption of prejudice,’ and we will find that [the alien] has been denied due process if he can demonstrate ‘plausible grounds for relief on his underlying claim.” Ray v. Gonzales,
In sum, we hold that Dominguez’s admission of the NTA’s allegation that Santiago smuggled his brother Luis was the product of ineffective assistance of counsel and that it prejudiced Santiago. See Ray,
CONCLUSION
The petition for review is granted. We remand to the BIA for it to consider the Id’s alternative holding that Santiago’s testimony established that he “knowingly encouraged, induced, assisted, abetted, or aided” his brother Luis to enter the United States illegally. 8 U.S.C. § 1227(a)(1)(A) & (a)(1)(E)(i); see Hernandez-Cruz v. Holder,
PETITION GRANTED; REMANDED.
Notes
. The facts recited here are those to which Santiago testified. As neither the Immigration Judge nor the Board of Immigration Appeals made an adverse credibility finding, we must accept Santiago’s testimony as true for present purposes. See, e.g., Kalubi v. Ashcroft,
. In contrast, the form 1-213 completed by one of the Border Patrol agents states that Santiago approached the agents to ask for help locating a particular gate and was then questioned about his immigration status. The 1-213 stated that Santiago was interrogated about his status because of his "confusion, nervousness, manner of dress[ — ]which was similar to other undocumented aliens encountered at the airport[ — ]and [the] actions of [Maravilla and Luis],” both of whom "maintained a safe distance” from the agents as Santiago asked for help.
. The I-215B states that Santiago admitted to smuggling in both his wife and his brother, but Santiago testified before the IJ that he told the agent that he had helped only his wife enter the country. Santiago admitted signing the 1-215B (which is in English), but says that it was never read to him in Spanish and that he only signed it after the agent told him that the form was just for “the judge" to decide whether he is guilty, presumably of smuggling.
. Section 1227(a)(1)(A) of Title 8 of the U.S.Code incorporates the grounds of inadmissibility as grounds of removability, stating that: "Any alien who at the time of entry or adjustment of status was within one or more of the classes of aliens inadmissible by the law existing at such time is deportable." 8 U.S.C. § 1227(a)(1)(A). One ground of inadmissibility is that the alien, "at any time[,] knowingly ... encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law." 8 U.S.C. § 1182(a)(6)(E).
. Section 1227(a)(l)(E)(i) of Title 8 of the U.S.Code provides that: "Any alien who (pri- or to the date of entry, at the time of any entry, or within 5 years of the date of any entry) knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law is deportable.” 8 U.S.C. § 1227(a)( 1 )(E)(i).
. The INS ceased to exist in 2003, and most of its functions were transferred to the Department of Homeland Security (DHS) and its subagencies, including Immigration and Customs Enforcement (ICE). See Homeland Security Act of 2002, Pub.L. No. 107-296, §§ 441, 471, 116 Stat. 2135, 2192, 2205 (codified at 6 U.S.C. §§ 251, 291); MoralesIzquierdo v. Gonzales,
. "The term 'notario' or 'notary' in our immigration case law refers to individuals who either (a) hold themselves out as immigration law experts, even though they are not attorneys; or (b) act as gatekeepers for 'appearance attorneys’ with limited or no knowledge of their client’s case.” Avagyan v. Holder,
. The record contains no information about the resolution of this complaint, and Dominguez has no public disciplinary history noted on the website of the State Bar of Texas, which lists Dominguez as currently working for ICE.
. The Consumer Protection Unit responded by letter dated March 27, 2003, stating that the complaint had been referred to the Los Angeles City Attorney for the initial investigation. No further action on this complaint is noted in the record.
.The California Bar disciplined Vega in 2007, however, for conduct somewhat similar to what occurred here. See Order, Matter of Xavier Vega, Nos. 05-0-01314-DFM & 05-0-03887-DFM (Cal. Bar Ct. Dec. 5, 2007), available at http://members.calbar.ca.gov/court Docs/05-0-01314.pdf.
. In light of the apparent forgery of Santiago’s signature, the IJ explicitly did not rely on the admissions made in the first Motion to Change Venue filed by Connexion Legal.
. Due to a number of concerns, including its reliability, the IJ explicitly disregarded any evidence obtained during Santiago’s arrest at the El Paso airport (the 1-213 and I-215B). As the contested evidence was excluded from consideration, we do not consider Santiago’s suppression argument.
. By statute and regulation, the NTA must specify, inter alia, the alien's "acts or conduct alleged to be in violation of law” and "the charges against [him] and the statutory provisions alleged to have been violated.” 8 U.S.C. § 1229(a)(1)(C) & (D); 8 C.F.R. § 1003.15(b)(3) & (4).
. As previously mentioned, the admission that he smuggled his wife renders Santiago removable, but that ground of removability can be waived. See 8 U.S.C. § 1182(d)(l 1); id. § 1227(a)(1)(E). Santiago never had the opportunity to seek such a waiver, however, because the II held that he was removable for smuggling his brother, for which no waiver is available.
. Whether Santiago "knowingly encouraged, induced, assisted, abetted, or aided” Luis's illegal entry involves questions of both law and fact. The law defines what actions count as “encouraging], inducting], assisting] abetting] or aiding]" another to illegally enter the country; whether Santiago took one of those unlawful acts is a question of fact. Dominguez's factual admission, therefore, was that Santiago committed an unlawful action with regard to Luis's illegal entry.
. In considering a motion to change venue, IJs determine whether good cause exists by "balancing the factors ... relevant to the venue issue,” including "administrative convenience, expeditious treatment of the case, location of witnesses, and cost of transporting witnesses or evidence to a new location.” Matter of Rahman, 20 I. & N. Dec. 480, 482 (BIA 1992) (citation omitted).
. The BIA did reach this "egregious circumstance,” albeit summarily.
Dissenting Opinion
dissenting:
After Santiago entered formal admissions to the allegations in the Notice to Appear and conceded removability, the Government agreed not to oppose his Motion to Change Venue. Now — several years and a couple of different attorneys later — Santiago seeks to withdraw his formal admissions. However, he has not shown either that the admissions he made were false, or that there are egregious circumstances compelling the withdrawal of those admissions. Accordingly, I respectfully dissent.
As the majority recognizes, the general legal framework for this case was set forth in Matter of Velasquez, 19 I. & N. Dec. 377 (BIA 1986), as follows:
Absent egregious circumstances, a distinct and formal admission made before, during, or even after a proceeding by an attorney acting in his professional capacity binds his client as a judicial admission. Thus, when an admission is made as a tactical decision by an attorney in a deportation proceeding, the admission is binding on his alien client and may be relied upon as evidence of deportability.
Velasquez, 19 I. & N. Dec. at 382 (internal citations omitted).
Santiago cannot obtain relief here because he cannot show egregious circumstances compelling the withdrawal of his prior admissions. At the end of the day, several key facts remain undisputed. When Santiago was in Mexico marrying his wife, Santiago’s brother lived in Santiago’s house in Mexico. After the wedding, Santiago, his wife, and his brother traveled around Mexico, and they all took a plane together to Juarez, Mexico, right next to the United States border. Santiago bought the airline ticket for his wife, and
After discussing “everything” with Santiago (which presumably included all the facts set forth above), Attorney Dominguez entered formal admissions on Santiago’s behalf. These admissions prompted the government to agree not to oppose Santiago’s Motion to Change Venue from El Paso, Texas to Los Angeles, California, where Santiago resided, and thus “the decision to admit the allegations and concede removability made the motion to change venue more likely to be granted.” Majority at 831. As the IJ stated, and the majority does not dispute, Santiago “received a benefit in return for his change of venue to the detriment of the Government by giving up the locale where there[sic] witnesses were located.” See Majority at 831. Having received a strategic benefit from his admissions, and being unable to show that the admissions were in fact false, Santiago is now unable to show “egregious circumstances” sufficient to compel the withdrawal of his admissions.
Here, the majority seeks to avoid this conclusion by focusing on the theoretical possibility that Santiago’s testimony might be construed to suggest that the admissions he entered were not, in fact, true. The majority states that Santiago may not be guilty of smuggling because he has protested that he is “innocent” of the charges and that he did not “help” his brother, only his wife. However, these are legal conclusions, not factual ones. The facts that Santiago now admits reasonably support a finding that he aided and abetted his brother’s entrance into this country, consistent with the admissions made by his attorney. Even if a trier of fact were not compelled to conclude that Santiago had failed to show egregious circumstances, a trier of fact certainly could reasonably so conclude.
The majority faults the BIA for not acknowledging the legal significance of Altamirano v. Gonzales,
The majority’s reliance on Aguilar Gonzalez v. Mukasey,
As the majority acknowledges, the IJ’s decision, after hearing evidence, to hold Santiago to his judicial admissions is reviewed for abuse of discretion. Majority at 832 (citing Matter of Saleh, No. A096 437 096,
. This is particularly true because Attorney Vega was fully aware of the admissions that Santiago had entered through Attorney Dominguez, and Vega did not seek to withdraw them. The majority dismisses Vega's conduct as a mere "omission” and asserts that it cannot constitute a separate "distinct and formal admission” that binds Santiago. Assuming this is true, Vega’s actions (or lack thereof) still can be considered by the BIA when determining whether Santiago showed egregious circumstances sufficient to relieve him from his previously-entered admissions.