Perez–mejia v. Holder

• Decision Date: 21 April 2011
• Docket Number: No. 07–70118.,07–70118.
• Citation: 641 F.3d 1143
• Parties: Barbarito PEREZ–MEJIA, Petitioner,v.Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

641 F.3d 1143

11 Cal. Daily Op. Serv. 4704

2011 Daily Journal D.A.R. 5661

Barbarito PEREZ–MEJIA, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 07–70118.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 11, 2011.Filed April 21, 2011.

Raul Gomez and Araceli S. Perez–Brizo (argued), Law Office of Raul Gomez, Los Angeles, CA, for petitioner.James E. Grimes, United States Department of Justice, Civil Division, Washington, D.C., for respondent.On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A073–845–546.Before: A. WALLACE TASHIMA and RAYMOND C. FISHER, Circuit Judges, and MARK L. WOLF, District Judge.^*

OPINIONWOLF, 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 8 U.S.C. § 1182(a)(2)(A)(i)(II) and that he was ineligible for a waiver of inadmissibility pursuant to 8 U.S.C. § 1182(h).

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 California Health and Safety Code section 11351. Sometime later, he applied for adjustment of status to become an LPR. During his adjustment interview with the Department of Homeland Security (“DHS”), Perez–Mejia disclosed his 1997 conviction. Despite the fact that his conviction should have rendered Perez–Mejia inadmissible, he was granted LPR status in 2003.

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 8 U.S.C. § 1182(a)(2)(A)(i)(II) as an alien who was convicted of a drug offense involving a controlled substance listed in § 102 of the Controlled Substances Act. 21 U.S.C. § 802.

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 California Health and Safety Code section 11351, but did not identify the controlled substance. Perez–Mejia stated that he was not ready to address the allegations in the NTA and the proceedings were again continued in order to allow Perez–Mejia to pursue his collateral attack on his 1997 conviction. Perez–Mejia's counsel told the IJ that he was attacking the conviction on the basis that Perez–Mejia possessed a controlled substance for personal use, rather than for sale.

When the removal proceedings resumed on May 12, 2005, Perez–Mejia was again represented by counsel. 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 8 U.S.C. § 1182(h), but that he needed another continuance to complete the collateral attack on Perez–Mejia's state court conviction. Another continuance was granted.

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 8 U.S.C. § 1182(h) on the ground that he was married to an United States citizen. The government argued that Perez–Mejia was not eligible for a § 1182(h) waiver because, in the context of a drug conviction, such waivers are available only where the conviction is for a “single offense of simple possession of 30 grams or less of marijuana.” 8 U.S.C. § 1182(h). Perez–Mejia's counsel stated that he had no argument in response. The IJ stated that he agreed with the government.

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 8 U.S.C. § 1101(a)(43)(B).

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 California Health and Safety Code section 11351.

When discussing Perez–Mejia's application for a § 1182(h) waiver, the IJ departed from the rationale on which he relied at the July 8, 2011 hearing. Instead of concluding that Perez–Mejia was ineligible for a waiver because he was not convicted of simple possession of less than thirty grams of marijuana, the IJ stated that Perez–Mejia's ineligibility turned on the fact that he was convicted of an aggravated felony. The reason that the IJ altered the rationale for his decision is not explained. The IJ also held that the government was not estopped from relying on Perez–Mejia's 1997 conviction because Perez–Mejia benefitted from a mistake made by DHS when it considered his application for LPR status, and was not prejudiced by that error. Finally, the IJ concluded that Perez–Mejia was not eligible for voluntary departure because he had been convicted of an aggravated felony.

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 § 1182(h)...