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Barbarito Perez-Mejia v. Holder

The Ninth Circuit amended its earlier decision in this case and denied rehearing. It held that counsel's concession at the pleading stage that the respondent was removable for conviction of possession of cocaine for sale under California Health and Safety Code section 11351 was sufficient to establish removability (at least absent contradictory evidence). The only evidence in the record was a docket sheet filed by DHS that showed a conviction for 11351, but which did not identify the substance involved. That would not have been enough if respondent's counsel had denied the allegations and charge of removability.

The court distinguished admissions made by the respondent in the later evidentiary phase of the removal proceedings, which are not sufficient on their own to establish removability under the modified categorical approach. At the pleading stage, on the other hand, an admission predictably results in DHS not introducing evidence to support its charges. In short, the respondent should not complain about the insufficiency of the evidence when his counsel's admissions obviated the need to present that evidence. (Probably, the unsubmitted conviction documents in this case were sufficient and the only strategy was to buy time for post-conviction relief, which obviously was not successful.)

The noncitizen also advanced meritless arguments about equitable estoppel (because USCIS negligently had granted him permanent resident status previously despite knowing about the possession for sale conviction) and 212(h) eligibility (despite the fact that the waiver is not available for controlled substance convictions other than simple possession of 30 grams or less of marijuana).

Read the decision at