Zimmer's Books

by William K. Zimmer, in Immigration Matters

 

The procedural history, facts of record, holding and rationale in Santiago Zamora Gonzalez v. Garland (July 15, 2022) No. 21-60371 are as follows:

 

Case History

The Petitioner appeared in immigration court, admitted the allegations on the notice to appear (“NTA”) and conceded that he was subject to removal as charged.

 

Based on the Petitioner’s admissions and concession, an Immigration Judge determined that the Petitioner was subject to removal from the United States.

 

The Petitioner then applied for cancellation of removal under section 240A(b) of the Immigration and Nationality Act, as amended (“the Act”).

 

The Immigration Judge denied the Petitioner’s application for cancellation of removal.

 

The Petitioner appealed the Immigration Judge’s decision to the Board of Immigration Appeals (“BIA”).

 

The BIA affirmed the decision of the Immigration Judge.

 

The Petitioner filed a petition for review of the BIA’s decision.

 

Facts

• The Petitioner is a native and citizen of Mexico, who was convicted in 2016 and 2019 for discharging a firearm in a municipality with a certain population size, in violation of Texas Penal Code § 42.12.
• The Department of Homeland Security (“DHS”), based on his 2016 and 2019 convictions for discharging a firearm, filed an NTA charging that the Petitioner is subject to removal under section 237(a)(2)(C) of the Immigration and Nationality Act, as amended (“the Act”) which provides that any alien who at any time after admission is convicted under any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying, or of attempting or conspiring to purchase, sell, offer for sale, exchange, use, own, possess, or carry, any weapon, part or accessory which is a firearm or destructive device (as defined  in 18 U.S.C. § 921(a)) in violation of any law, is deportable.
• The Petitioner appeared at his removal hearing, admitted the allegations on the NTA and conceded that he was subject to removal as charged.
• Based on the Petitioner’s admissions and concession that he was subject to removal as charged, an Immigration Judge determined that the Petitioner was subject to removal under section 237(a)(2)(C) of the Act.
• The Petitioner then filed an application for cancellation of removal governed by section 240A(b) of the Act.
• After a hearing on the merits of the Petitioner’s cancellation of removal application, an Immigration Judge determined that the Petitioner did not qualify for cancellation of removal and ordered him removed from the United States.
• The BIA affirmed the Immigration Judge’s decision.

 

Held

DISMISSED in part (regarding the challenge to discretionary denial of cancellation of removal)

DENIED in part (regarding the challenge to the Immigration Judge's reliance on the Petitioner’s concession of removability)

 

Rationale

The Petitioner raised the following arguments in his petition for review:

1. The BIA erred by binding him to his concession of removability.
2. The Immigration Judge failed to consider evidence as to whether his prior convictions qualified as removable offenses under section 237(a)(2)(C) of the Act, despite his concession.
3. The BIA erred by determining that the Petitioner’s’ concession was not attributable ineffective assistance of counsel.

The Fifth Circuit Court of Appeal reasoned as follows:

 

Concession of Removability

• Legal conclusions are reviewed de novo (legalese meaning a new decision unaffected by a previous decision) and, under the substantial evidence standard, a petitioner must demonstrate “the evidence is so compelling that no reasonable factfinder could reach a contrary conclusion.”  Chen v. Gonzales, 470 F.3d 1131, at 1134 (5th Cir. 2006).
• The Petitioner did not challenge the BIA conclusions that his counsel informed him fully regarding the proceedings and pleadings he was filing.
• The Petitioner did not adduce evidence indicating that he did not consent to his admissions and concession to the allegations and charge on his NTA.
• The Petitioner did not explain why the BIA should have judged the reasonableness of counsel’s decisions by out-of-circuit precedent in a manner out of step with the BIA’s historical practice.  See Matter of Anselmo, 20 I. & N. Dec. 25, at 31–32 (B.I.A. 1989) (noting the BIA “historically follow[s] a [federal appeals] court’s precedent in cases arising in that circuit”).
• The Petitioner offered no challenge to the BIA’s conclusion that he failed to present evidence required by Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A. 1988), to establish ineffective assistance of counsel on the part of his immigration attorney at the time he filed pleadings that included a concession to the removal charge.  See Orellana-Monson, 685 F.3d 511, at 517–18 (5th Cir. 2012); Matter of Velasquez, 19 I. & N. Dec. 377, at 383 (B.I.A. 1986) (explaining petitioner must “proffer [] evidence to show that the admissions and the concession of deportability made on his behalf by counsel . . . were the result of unreasonable professional judgment or were so unfair that they have produced an unjust result”).
• Therefore, the Petitioner is bound by his concession
• Consequently, his assertions that his prior convictions did not qualify as predicate offenses under section 237(a)(2)(C) of the Act and that the Immigration Judge erred by not considering evidence and assertions on the issue are unavailing.  See Martinez v. Bally’s La., Inc., 244 F.3d 474, at 476 (5^th Cir. 2001) (explaining that “[a] judicial admission is a formal concession in the pleadings or stipulations by a party or counsel that is binding on the party by making them”).

 

Discretionary Denial of Cancellation of Removal

• Contrary to the Petitioner’s contentions, appellate courts lack jurisdiction to review the BIA’s discretionary denial of cancellation of removal based on the agency’s balancing of the equities.  Trejo v. Garland, 3 F.4th 760, at 772–74 (5th Cir. 2021) (explaining lack of jurisdiction to review denial of discretionary relief).

 

Commentary

Jesus Humberto Castillo-Gutierrez v. Garland (August 5, 2022) No. 20-60492 is not a precedent decision, but it illustrates the significance of pleadings in immigration court proceedings.  It also makes clear that jurisdiction for appellate review of discretionary decisions relating to cancellation of removal is strictly limited.
 

 

Concession in Immigration Court Proceedings

The Fifth Circuit Court of Appeal cited Martinez v. Bally’s La., Inc., 244 F.3d 474 (5^th Cir. 2001) to explain the binding effect of judicial admissions.

Martinez v. Bally’s La., Inc. is a civil controversy that involves a dispute under the Jones Act (46 App. U.S.C.A. § 688) between the employee of a gambling ship and the ship’s owner over damages arising from abuse by a supervisor who allegedly used foul language, engaged in name calling, and threw keys, papers, pens and pencils at the plaintiff, causing worry and stress.

During a deposition, the plaintiff’s attorney interrupted questioning, stating that the plaintiff was "not making any kind of physical injury claims," and "we're waiving any physical injury claims."

The defendant then filed a Motion for Summary Judgment on the ground that the Plaintiff had no available remedy under the Jones Act because her claim stated purely emotional, non-physical injury and that such claims, unaccompanied by claims for physical injury, are not viable under the Jones Act.

The Fifth Circuit Court of Appeal decided in favor the defendant with the following rationale:

A judicial admission is a formal concession in the pleadings or stipulations by a party or counsel that is binding on the party making them. Although a judicial admission is not itself evidence, it has the effect of withdrawing a fact from contention. A statement made by counsel during the course of trial may be considered a judicial admission if it was made intentionally as a waiver, releasing the opponent from proof of fact.

Martinez v. Bally's La., Inc., at 476.

Citing the D.C. Circuit Court of Appeal, the Fifth Circuit Court of Appeal distinguished a judicial admission from an ordinary evidentiary admission:

[A]n ordinary evidentiary admission is "merely a statement of assertion or concession made for some independent purpose," and it may be controverted or explained by the party who made it.  McNamara v. Miller, 269 F.2d 511, at 515 (D.C. Cir. 1959).

Martinez v. Bally’s La., Inc., at 476-77.

Finally, the Fifth Circuit Court of Appeal explained why it deemed the plaintiff’s deposition waiver to be a judicial admission as opposed to an ordinary evidentiary admission:

The district court correctly noted that counsel's statements were intended to relieve Bally's from discovery of facts related to physical injury and were not merely asserted for an independent purpose. The court properly determined that Martinez' counsel's statement waiving all claims of physical injury was a judicial admission, which could not be contradicted by affidavit or otherwise.

Martinez v. Bally’s La., Inc., at 477.

Knowing the rationale utilized by the Fifth Circuit Court of Appeal regarding judicial admissions can be helpful to the immigration law practitioner.

When an Immigration Judge asks a respondent or his attorney “How do you plead to the allegations and charge?” the options available are:

1. admit the allegations and concede the charge(s);
2. deny the allegations and the charge(s);
3. admit the allegations and deny the charge(s);
4. admit some of the allegations and admit the charge(s);
5. admit some of the allegations and deny the charge(s); or
6. if there are multiple charges concede of one or more charges and deny one or more allegations

Practitioners should keep in mind that disputing the allegations or the charge or both requires the government to carry its burden of proof.  The Immigration Judge must terminate removal proceedings if the DHS cannot establish the removal charge by clear and convincing evidence.  See section 240(c)(3) of the Act; 8 C.F.R. § 1240.8(a).

Also, objections and due process challenges to the admission of evidence proffered by the DHS that does not comply with procedural requirements for the admission of evidence, such as authentication and the opportunity to cross examine witnesses, will become more significant and convincing in the absence of admissions and concessions.  A sentence in section 240(c)(3) of the Act that is sometimes overlooked is:  "No decision on deportability shall be valid unless it is based on reasonable, substantial and probative evidence." 

The DHS often dodges due process challenges to the admission of evidence in immigration court proceedings by claiming harmless error due to the lack of prejudice.  If the allegations and charge(s) are not in dispute, how can it be prejudicial to submit affidavits in the absence of the affiant or authentication of a Record of Deportable Alien (Form I-213) containing erroneous information relating to the facts that were removed from controversy during pleadings?   See Cantu-Delgadillo v. Holder, 584 F.3d 682, at 690 (5th Cir. 2009) (disregarding error as harmless where outcome would not have been different absent the error).

Furthermore, the Fifth Circuit Court of Appeal rejected a due process challenge to the admission of a Form I-213 with the following comment:

Official INS documents have been admitted in deportation proceedings without being identified by the signer when the person to whom the document refers does not attempt to impeach the information in the document.

Bustos-Torres v. I.N.S., 898 F.2d 1053, at 1056 (5th Cir. 1990).

The Fifth Circuit Court of Appeal has also indicated that the right to cross examination may not be asserted “to prevent the government from establishing uncontested facts.”  Olabanji v. I.N.S., 973 F.2d 1232, at 1234 n.1 (5th Cir. 1992).

In short, it is not safe to sit on the fence with regard to the allegations and charge(s) contained in the NTA if doubt about removability exists.  At least, do not let the lure of relief from removal distract from close scrutiny of allegations and charge(s) upon which the removal proceedings are grounded. 

Never forget that administrative fact finding in the context of discretionary decisions relating to relief in immigration proceedings is beyond the scope of appellate review.  Patel v. Garland, 142 S. Ct. 1614 (2022).   

Governing regulations provide that:

If the respondent admits the factual allegations and admits his or her removability under the charges and the immigration judge is satisfied that no issues of law or fact remain, the immigration judge may determine that removability as charged has been established by the admissions of the respondent.

See 8 C.F.R. § 1240.10(c).

It seems that a fundamental question that must be answered with regard to pleadings is whether the pleadings are voluntary which means knowledgeable.

If a client is unrepresented and the Immigration Judge fails to describe in plain language the basic structure of removal proceedings, the allegations and removal charge(s), the respondent’s rights, and make certain that the respondent understands, the pleadings might be challenged as involuntary or made without necessary knowledge or understanding.  See 8 C.F.R. § 1240.10(a)(6).

If pleadings are made on behalf of a respondent by an attorney, in the absence of unreasonable professional judgement, the pleadings will be binding.  See Castillo-Gutierrez v. Garland, at p.3; Zhong Qin Yang v. Holder, 570 F. App'x 381, at 382-83 (5th Cir. 2014) (discussing the effect of counsel’s concessions before the immigration judge).

According to the BIA, “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.”  Matter of Velasquez, 19 I&N Dec. 377, at 382 (BIA 1986).

One way to possibly avoid the binding effect of pleadings during immigration court proceedings is to file a motion to withdraw or change the pleadings.  If granted new pleadings can be submitted.

Another avenue to avoid the binding effect of a statement or admission, before or after the record of proceedings is complete, might be to convince the Immigration Judge or the BIA that the statement or admission should be classified as an ordinary evidentiary admission.  Then be prepared with a cogent explanation of what meaning was intended by the statement or admission. 

For example, in circumstances similar to the circumstances described in Castillo-Gutierrez v. Garland, suppose counsel admits that a firearm was involved in one or both of the offenses of discharging a firearm for which the respondent was convicted under Texas Penal Code § 42.12.  If the government argues that the respondent is bound by an admission or concession that the respondent transported a firearm in the course of committing the offenses or is subject to removal under section 237(a)(2)(C) of the Act for transporting a firearm the respondent or petitioner can assert that the admission was not intended as a concession of the charge because transporting a firearm is not the equivalent of “discharging” a firearm under Texas law.  See, for example, Flores-Abarca v. Barr, 937 F.3d 473, at 483 (5th Cir. 2019) (“The term ‘transport’ does not necessarily imply possession.”).  However, see Segovia-Rivas v. Lynch, 643 F. App'x 367, at 369 (5th Cir. 2016) (holding that a conviction for "Attempted Deadly Conduct—Discharge of a Firearm" is categorically an offense covered by section 237(a)(2)(C) of the Act because "[d]ischarging a firearm clearly involves use of a firearm") [emphasis added]. 

Nevertheless, the mere existence of authority that is contrary to a party’s legal position does not establish that such legal position is without merit.  It is not frivolous behavior, for example, for an immigration practitioner to make a “good faith argument for the extension, modification, or reversal of existing law or the establishment of new law . . .”  See 8 C.F.R. § 1003.102(l).

Perhaps, the reader can think of other means of dissolving the binding effect of admissions made in the context of immigration court proceedings.   

 

Appellate Review Relating to Cancellation of Removal

The Fifth Circuit Court of Appeal, in Jesus Humberto Castillo-Gutierrez v. Garland (August 5, 2022) No. 20-60492, concluded that Patel v. Garland, 142 S. Ct. 1614 (2022) abrogated its previous holding in Trejo v. Garland, 3 F.4th 760, at 766–77 (5th Cir. 2021) that the BIA’s hardship determination is not subject to the jurisdictional bar in section 242(a)(2)(B) of the Act.  Castillo-Gutierrez v. Garland, at p.7.

Although Patel v. Garland is not referenced in Santiago Zamora Gonzalez v. Garland, the lack of jurisdiction for appellate review of discretionary denials of cancellation of removal is more clearly out of reach.

In particular,  On May 16, 2022, the United States Supreme Court concluded that in matters relating to immigration law, section 242(a)(2)(B) of the Act, as modified by section 242(a)(2)(D) of the Act, deprives appellate courts of jurisdiction to review findings of fact by administrative decision makers in the adjudication of relief applications pursuant to sections 212(h) (waiver of inadmissibility arising from criminal behavior or convictions), 212(i) (waiver of inadmissibility based on fraud), 240A (cancellation of removal), 240B (voluntary departure), and 245 of the Act (adjustment of status), as well as any other discretionary decision or action by the United States Attorney General or the DHS that is not a ground for a constitutional claim or a question of law raised in a petition for review. 

Obviously, cancellation of removal under section 240A is on the list of relief applications for which Congress eliminated appellate review, except for constitutional claims or questions of law.  See sections 242(a)(2)(B)(i) and 242(a)(2)(D) of the Act, respectively.

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