Date: 07-09-2014

Case Style: Dione Pereira Lima v. Eric H. Holder, Jr.

Case Number: 12-1582

Judge: Thompson

Court: United States Court of Appeals for the First Circuit on

Plaintiff's Attorney: Jeffrey B. Rubin on brief for petitioner.

Defendant's Attorney: Stuart F. Delery, Assistant Attorney General, Linda S.
Wernery, Assistant Director, and Theodore C. Hirt, Senior
Litigation Counsel, Office of Immigration Litigation on brief for
respondent.

Description: "As we must account for every
idle word, so must we account for every idle silence." Benjamin
Franklin's words ring true for Petitioner Dione Pereira Lima, who
struggles mightily to take back his words in the proceedings below,
while simultaneously attempting to assert new claims of error. In
this challenge to a final removal order requiring him to return to
Brazil, Lima attempts to undo his attorneys' concessions of
removability. He further seeks to argue--for the first time--that
the Immigration Judge violated his due process rights by denying
his motion to continue the proceedings below and by failing to
permit him to amend his written pleadings. We deny the petition
for review.
I. BACKGROUND
Lima is a native and citizen of Brazil who entered the
United States on or about December 16, 2004. He adjusted status to
that of lawful permanent resident on January 27, 2009. Later that
year, Lima was arrested and charged with breaking and entering in
the daytime in violation of Mass. Gen. Laws ch. 266 § 18.1 Brought
before the Malden District Court on December 15, 2009, Lima
1 Mass. Gen. Laws ch. 266 § 18 provides, in pertinent part,
"[w]hoever, in the night time, enters a dwelling house without
breaking, or breaks and enters in the day time a building, ship, or
motor vehicle or vessel, with intent to commit a felony, no person
lawfully therein being put in fear, shall be punished by
imprisonment in the state prison for not more than ten years or by
a fine of not more than five hundred dollars and imprisonment in
jail for not more than two years."
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admitted facts sufficient for a finding of guilt. The court
ordered the case to be continued without a finding for two years,
and directed Lima to pay restitution of approximately $6,220.00.
Lima was arrested a second time in December 2010, this
time on suspicion of breaking into cars, and charged with another
violation of Mass. Gen. Laws ch. 266 § 18. On January 4, 2011, he
appeared again in the Malden District Court and admitted to facts
sufficient for a finding of guilt. This time, he received two
years of probation.2
Lima's convictions quickly resulted in consequences
beyond probation. On February 11, 2011, the Department of Homeland
Security ("DHS") served him with a Notice to Appear ("NTA")
charging him as removable under the Immigration and Nationality Act
("INA") § 237(a)(2)(A)(ii) for being convicted, at any time after
admission into the United States, of two crimes involving moral
turpitude. A series of hearings and appeals regarding Lima's
2 8 U.S.C. § 1101(a)(48)(A) defines a conviction for
immigration purposes as "a formal judgment of guilt of the alien
entered by a court, or if adjudication of guilt has been withheld,
where--
(i) a judge or jury has found the alien guilty or the alien
has entered a plea of guilty or nolo contendere or has admitted
sufficient facts to warrant a finding of guilt, and
(ii) the judge has ordered some form of punishment, penalty,
or restraint on the alien's liberty to be imposed."
Lima does not dispute that the dispositions of his criminal
cases are convictions for immigration purposes.
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removability ensued. Because of their relevance to our decision
today, we provide the following summary of events.
After an initial hearing at which an Immigration Judge
("IJ") gave Lima additional time to secure legal representation,
counsel appeared on March 3, 2011. During the course of
proceedings that day, counsel told the IJ that Lima "has [been
convicted of] two crimes of moral turpitude, which he has a
breaking and entering of a house and breaking and entering of a
vehicle." Lima's attorney went on to submit written pleadings
conceding the NTA's allegations and admitting that Lima was
removable as charged. Counsel explained that Lima intended to
apply for asylum and withholding of removal. The IJ raised some
concern as to whether Lima would be eligible for asylum and asked
whether he was "trying to do anything with the convictions," to
which counsel responded in the affirmative. He further stated that
he would "have [Lima] come back in to submit the applications" for
asylum and/or withholding of removal, and adjourned the proceedings
until April 21, 2011.
Upon his return, and in spite of his past
representations, defense counsel reported now that Lima would not
be applying for asylum or withholding of removal after all. The IJ
scheduled the next hearing, at which Lima was to appear in person,
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for May 5. Sometime thereafter, Lima discharged his original
attorney and hired new counsel.3
Lima, with his new attorney beside him, appeared before
the IJ on May 5. Addressing Lima's change in representation,
counsel explained that Lima "did not agree with the course of
action that his previous counsel wanted to take on the case and he
seeked [sic] our office to represent him from this point forward."
She never denied or disavowed Lima's first attorney's admission
that his 2009 conviction was for breaking into a "house." She did,
however, request a continuance so that Lima could move to vacate
both convictions in the Malden District Court. Counsel stated that
Lima had not been advised of the immigration consequences of
pleading to the criminal charges and would, therefore, seek to
overturn them pursuant to the Supreme Court's ruling in Padilla v.
Kentucky.4
The IJ first noted that Lima had previously indicated he
would accept a removal order. He denied Lima's motion to continue,
observing that he did not know how long it would take the
Massachusetts courts to dispose of Lima's Padilla motions. The IJ
3 Lima's new attorney continues to represent him before this
court.
4 In Padilla v. Kentucky, the Supreme Court held that the
Sixth Amendment requires an attorney representing a noncitizen in
a criminal proceeding to advise her client about the immigration
consequences that may result from a conviction. 130 S. Ct. 1473,
1484-86 (2010).
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proceeded to find Lima removable by clear and convincing evidence
based on Lima's "admissions, as well as his concession of
removability." The IJ then ordered Lima removed to Brazil.
Lima appealed to the Board of Immigration Appeals
("BIA"), taking the position that the IJ erred in not granting him
a continuance to collaterally attack his state court convictions.
Notably, Lima's brief to the BIA contains the explicit statement
that Lima "is removable for two convictions for which [Lima] is
actively pursuing post-conviction relief." This was the sole
ground Lima advanced in favor of reversal. The BIA upheld the
removal order on August 22, 2011.
That same day, the Malden District Court granted Lima's
new trial motion with respect to his 2011 conviction (the one for
breaking into cars, according to his first attorney) on the grounds
of ineffective assistance of counsel under Padilla.5 With this
victory in hand, Lima filed a Motion to Reopen his removal
proceedings. The BIA granted the motion on November 15, 2011, and
remanded the matter to the IJ.
The IJ resumed proceedings on December 8, 2011,
acknowledging as he did that one of Lima's convictions had been
vacated since he entered the order of removal. DHS was not idle,
however, and served Lima with a new NTA at this hearing. This
5 Whether Lima was retried and, if so, the outcome of that
trial, does not appear in the record. Neither party's brief
satiates our curiosity in this regard.
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second NTA alleged Lima's removability under INA § 237(a)(2)(A)(i)
because he had been convicted of a single crime involving moral
turpitude, for which a sentence of one year or longer could have
been imposed, within five years of his admission to the United
States. This second NTA refers to his 2009 conviction for breaking
and entering a house.
Unlike the first go-round, this time Lima denied that he
was removable. He requested another continuance to give him
additional time to file a motion to vacate his 2009 conviction.
DHS objected, stating that the second NTA did not set forth any new
allegations and simply charged Lima as removable based on his 2009
conviction alone. DHS stated that Lima's counsel "should have been
very well aware that was coming" and took the position that Lima
already "had ample opportunity to have both these charges vacated."
The IJ agreed with DHS and denied Lima's motion to
continue. The IJ suggested that Lima reserve his right to appeal
and "do the same thing that [he] did the last time," i.e., seek to
have the remaining conviction vacated while his appeal was
pending.6 He proceeded to find Lima removable by clear and
convincing evidence in light of his previous concession that both
6 Despite counsel's statement that he had previously filed a
motion to vacate the 2009 conviction and was awaiting a hearing,
the record is silent as to the outcome of that hearing. We expect
defense counsel would have notified us and/or filed another motion
to reopen with the BIA had it been allowed. As it stands, however,
the only evidence in the record is that the 2009 conviction
remains.
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of his criminal convictions were for crimes involving moral
turpitude.
Lima filed a second appeal with the BIA. He contended
this time that the government failed to prove by clear and
convincing evidence that his December 2009 conviction was for a
crime involving moral turpitude. In his view, the government was
required to present evidence that the felony he intended to commit
after breaking into the house was itself a crime involving moral
turpitude. Because the government presented no evidence as to the
nature of the contemplated follow-up crime, Lima argued that it
failed to prove his conviction was in fact for a crime involving
moral turpitude.
Notably, Lima did not claim the IJ abused his discretion
in denying the motion to continue, or that the outcome of the
immigration proceedings would have been any different had he been
given the extra time he sought. He did not complain that his due
process rights had been violated in any respect. Further, Lima
lodged no argument that it was improper for his former counsel to
have admitted the factual allegations contained in the original
NTA, that the 2009 conviction did not involve moral turpitude, or
that he was not removable as charged in the original NTA. Neither
did he contradict his first attorney's statement that his 2009
conviction was predicated upon his breaking and entering a house.
The BIA found it significant that, although Lima was
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challenging his removability on the grounds that his 2009
conviction was not for a crime involving moral turpitude, his prior
counsel had already conceded that both the 2009 and 2011
convictions were for crimes involving moral turpitude, rendering
Lima removable. The BIA held Lima to these concessions and
affirmed the removal order.
Lima's timely petition to this Court followed.
II. DISCUSSION
A. Standard of Review
The BIA did not simply adopt the IJ's decision as its
own, but instead affirmed after providing its own analysis.
Accordingly, we focus our review on the BIA's decision rather than
the IJ's. López v. Holder, 740 F.3d 207, 210 (1st Cir. 2014).
We review questions of law de novo, including the BIA's
conclusion that a noncitizen's criminal conviction constitutes
grounds for removal. Patel v. Holder, 707 F.3d 77, 79 (1st Cir.
2013). Nevertheless, we will defer to the BIA's reasonable
interpretations of the INA, "including its determination that a
particular crime qualifies as one of moral turpitude, unless that
interpretation is arbitrary, capricious, or clearly contrary to
law." Da Silva Neto v. Holder, 680 F.3d 25, 28 (1st Cir. 2012)
(internal quotation marks omitted); see also Chevron U.S.A., Inc.,
v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984).
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Factual findings, by contrast, are reviewed deferentially
under the substantial evidence standard, "meaning that we uphold
those determinations unless 'any reasonable adjudicator would be
compelled to conclude the contrary.'" Urizar-Carrascoza v. Holder,
727 F.3d 27, 31 (1st Cir. 2013) (quoting 8 U.S.C. § 1252(b)(4)(B)).
While the ultimate question of removability is a question of law,
we apply this deferential review to the fact-based component of the
inquiry into a noncitizen's removability based upon his
concessions. Id. at 32 (finding noncitizen's concession of
removability satisfied substantial evidence standard).
B. Analysis
Lima petitions for review of the BIA's finding that he is
removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(i). That statute
provides, in pertinent part, that any noncitizen who "(I) is
convicted of a crime involving moral turpitude committed within
five years . . . after the date of admission, and (II) is convicted
of a crime for which a sentence of one year or longer may be
imposed, is deportable." 8 U.S.C. § 1227(a)(2)(A)(i). The BIA,
after considering the evidence, determined that Lima was removable
based on his first attorney's concession of removability. It is
with this finding that we begin.
1. Lima's Words - Concessions of Removability
We first account for Lima's words in the proceedings
below. As noted, Lima's initial attorney conceded not only that he
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was removable for having been convicted of two crimes involving
moral turpitude, but also that his 2009 conviction was for breaking
and entering a house. And in Lima's brief filed with the BIA in
connection with his first appeal, successor counsel conceded his
removability for having been convicted of two crimes involving
moral turpitude. On petition to this Court, instead of telling us
why we should not hold him to the concessions of removability, Lima
spends most of his brief arguing that his 2009 conviction was not
for a crime involving moral turpitude and, therefore, he is not
removable under INA § 237(a)(2)(A)(i).
DHS takes a different view. It asserts, first of all,
that Lima is bound by his admissions through counsel that (1) his
2009 conviction was for a crime involving moral turpitude, and (2)
that he is removable. It additionally argues that because Lima did
not challenge removability before the IJ in the initial proceedings
or before the BIA in his first appeal, it is too late for him to do
so now. Thus, DHS asks us to uphold the BIA's conclusion that
Lima's 2009 conviction renders him removable.
To resolve this petition, we must determine whether the
BIA erred when it refused to disregard Lima's concessions. And,
regardless of our answer to this question, we must then consider
whether the BIA's finding of removability was supported by
substantial evidence in the record. We begin with Lima's
concessions.
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(a) Binding Concessions
As we have noted, the BIA held Lima to his first
attorney's admission of removability based on Lima's convictions
for two crimes involving moral turpitude, and found him removable
on that basis.7 In actuality, the record reveals that Lima made
several separate admissions bearing on his removability. His
initial attorney submitted written pleadings admitting to the
charges in the first NTA, and he stated before the IJ that the two
crimes of conviction were ones involving moral turpitude. This
attorney also stated, on the record, that the 2009 conviction arose
out of Lima's having broken into a "house."8 And after changing
attorneys, even his new counsel admitted Lima's removability in the
initial appeal to the BIA.
Generally speaking, "[a] party's assertion of fact in a
pleading is a judicial admission by which it normally is bound
throughout the course of the proceeding." Schott Motorcycle
Supply, Inc. v. Am. Honda Motor Co., Inc., 976 F.2d 58, 61 (1st
Cir. 1992) (internal quotation marks omitted). And "an admission
of counsel during trial is binding on the client" if, in context,
7 The BIA also noted that in order to be removable for the
commission of a single crime involving moral turpitude, that crime
must have been committed within five years of his admission to the
United States. Lima does not contest that the offense occurred
within five years of admission.
8 Neither party has remarked upon this concession.
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it is "clear and unambiguous." Levinsky's, Inc. v. Wal-Mart
Stores, Inc., 127 F.3d 122, 134 (1st Cir. 1997).
These rules hold true in the immigration context.
Leblanc v. I.N.S., 715 F.2d 685, 694 (1st Cir. 1983). Where a
noncitizen fails to demonstrate that his attorney's conduct was so
egregious as to "warrant releasing [him] from his attorney's
concessions," those admissions are binding upon him. Karim v.
Mukasey, 269 Fed. App'x. 5, 6-7 (1st Cir. 2008). Furthermore,
where a litigant has advanced no grounds to revisit a concession of
removability, we have held that the concession is both binding on
the noncitizen and establishes sufficient grounds for finding him
removable. Karim v. Gonzales, 424 F.3d 109, 111-12 (1st Cir.
2005).
Lima's assertion to this court that his 2009 conviction
is not for a crime involving moral turpitude cannot undo the clear
and unambiguous concessions both of his attorneys have made to the
opposite effect. Indeed, Lima does not claim that his first
attorney's admissions amounted to the type of "egregious
circumstances" that would be necessary for us to set them aside.
He fails to even address successor counsel's concession of
removability in his first brief to the BIA.
Simply put, Lima offers no substantial reason why we
should free him from his concessions of removability beyond his
assertion that he wishes to amend his pleadings. Our review of the
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record leads us to the ineluctable conclusion that his attorneys'
concessions of removability were considered tactical decisions made
because Lima did not have a meritorious defense to the charges of
removability. Indeed, the pleadings submitted during the March 17,
2011 hearing clearly indicate that Lima's counsel conceded
removability with the intention of then applying for relief from
removal.
We have previously stated that "[i]t is not unusual or
egregious for counsel to make tactical decisions that ultimately
fizzle and redound to the client's detriment." Leblanc, 715 F.2d
at 694. Nor does such a tactical decision constitute ineffective
assistance of counsel (a claim which, by the way, Lima does not
make) even when it turns out to have been less than optimal. Id.
We conclude, therefore, that Lima has failed to demonstrate that
his attorneys' concessions of removability were so egregious as to
"warrant releasing [him] from [those] concessions." Karim, 269
Fed. App'x. at 6-7. Therefore, like the BIA, we too hold Lima to
the words of his attorneys.
Having reached this conclusion, we now turn to whether
the BIA properly relied exclusively on these concessions and the
admissions of removability in finding Lima removable.
(b) Concessions as Sufficient Evidence of Removability
The government bears the burden of establishing the facts
showing that a noncitizen is removable by "clear, unequivocal, and
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convincing evidence." Urizar-Carrascoza, 727 F.3d at 32; 8 U.S.C.
§ 1229a(c)(3)(A); 8 C.F.R. § 1240.8(a). It has been further
provided by regulation 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.
8 C.F.R. § 1240.10(c). Thus, although the government must
establish the facts to support a finding of removability, we have
found that an IJ may apply 8 C.F.R. § 1240.10(c) to determine that
removability has been established based on the noncitizen's
admissions. Urizar-Carrascoza, 727 F.3d at 33; 8 C.F.R. §
1240.10(c); see also Karim, 269 Fed. App'x. at 6-7 (explaining that
an IJ may rely on a noncitizen's pleadings to determine
removability).
Our sister circuits have reached similar conclusions. In
Selimi v. I.N.S., the Seventh Circuit held that the government was
relieved of its burden to prove removability where the noncitizen
conceded removability because the concession "was in the nature of
a judicial admission, and such an admission has the effect of
withdrawing the issue from controversy." 312 F.3d 854, 860 (7th
Cir. 2002). Along these same lines, the Ninth Circuit has held
that an IJ may rely on a noncitizen's counsel's concessions of
removability and that "no further evidence concerning the issues of
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fact admitted or law conceded is necessary." Perez-Mejia v.
Holder, 663 F.3d 403, 414 (9th Cir. 2011).
The Second Circuit's opinion in Hoodho v. Holder is
particularly illuminating here. 558 F.3d 184 (2d Cir. 2009). That
court rejected a petitioner's argument that, even though he had
conceded removability based on his criminal record, the IJ must
independently examine that record to determine whether he was, in
fact, removable. Id. at 191. In doing so, the Second Circuit held
that such admissions of removability "are not subject to judicial
scrutiny to ensure that the admissions are fully supported by the
underlying record." Id. The court explained that "the acceptance
by the IJ of a plausible concession of removability is an
unremarkable feature of removal proceedings." Id. at 187. Thus,
the Second Circuit held that a petitioner may not take back a
concession of removability when, "in hindsight, it might have been
preferable for him to have contested removability" instead. Id.
We find the reasoning of our sister circuits persuasive
and apply it here. Indeed, holding noncitizens to concessions made
by counsel fits comfortably within our well-established rule in
civil litigation that "a pleading admitting a fact alleged in an
antecedent pleading is treated as a binding judicial admission,
removing the fact from contention for the duration of the
litigation." Harrington v. City of Nashua, 610 F.3d 24, 31 (1st
Cir. 2010). Lima's concessions amounted to binding judicial
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admissions, upon which the IJ permissibly relied in determining
removability.
Although this would appear to bring the discussion to an
end, Lima retorts by arguing that whether or not a crime involves
moral turpitude is a question of law that he may not concede. In
support of this proposition, he cites the Third Circuit's holding
that the "legal classification of prior convictions is not a
factual proposition susceptible of admission by a litigant."
Garcia v. Att'y Gen. of the United States, 462 F.3d 287, 290 n.6
(3d Cir. 2006). Lima's reliance on the Third Circuit rule is
misplaced. We do not need to address this rule, which appears to
be inconsistent with First Circuit precedent, because Lima's
concession was both of fact and law. One of the factual
concessions was that Lima's prior conviction for breaking and
entering was of a house. The BIA was entitled to rely on that.
In light of Lima's admission that his 2009 conviction
resulted from his breaking into a house, we find that the BIA's
conclusion that Lima's 2009 conviction rendered him removable was
not arbitrary, capricious, or clearly contrary to law. To sum up,
the BIA did not err in holding Lima to his attorneys' concessions
of removability, nor did it abuse its discretion in determining
that Lima was removable based upon his 2009 conviction.
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2. Lima's Silence
Moving on, we must now account for Lima's previous
silence on two supposed due process violations. First, Lima
contends that the IJ denied him due process by denying his second
attorney's request to amend the original pleadings. He says this
is so because the IJ ignored counsel's "plausible" and "sufficient"
explanations for requesting to amend the pleadings. See Karim, 424
F.3d at 111 (stating that "[w]here no plausible reason is offered
for a request [to amend the pleadings], the word 'no' is plainly
sufficient").
Second, Lima argues that the IJ abused his discretion,
resulting in a denial of due process, by denying his request for a
continuance to give him a further opportunity to vacate his 2009
conviction. Specifically, Lima contends that he showed good cause,
and that his request should have been granted pursuant to
applicable regulations. See 8 C.F.R. §§ 1003.29 and 1440.6
(permitting an IJ to grant a continuance for good cause shown).
We, however, cannot decide these particular claims.
It is well-established that this Court may only review a
final order of removal if "the [noncitizen] has exhausted all
administrative remedies available to the [noncitizen] as of right."
8 U.S.C. § 1252(d)(1); Kinisu v. Holder, 721 F.3d 29, 34 (1st Cir.
2013). We do make an exception for due process claims "of the kind
the BIA could not adjudicate because of their predominately
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constitutional character" since the BIA is "without jurisdiction to
adjudicate purely constitutional issues." Ravindran v. I.N.S., 976
F.2d 754, 762 (1st Cir. 1992). However, "[w]hen constitutional
claims 'involve procedural errors correctable by the BIA,
applicants must raise such claims as part of their administrative
appeal.'" Kandamar v. Gonzales, 464 F.3d 65, 71 (1st Cir. 2006)
(quoting Capric v. Ashcroft, 355 F.3d 1075, 1087 (7th Cir. 2004)).
Lima's objections to alleged procedural errors,
repackaged as due process claims, fall squarely in the latter
category of due process claims. Both of his claims center on
rulings that fell within the IJ's discretionary decision-making
authority, and which, if in error, could have been corrected by the
BIA. See, e.g., O'Connell v. Hyatt Hotels of Puerto Rico, 357 F.3d
152 (1st Cir. 2004) (denial of request to amend pleadings reviewed
for abuse of discretion); Sheikh v. Holder, 696 F.3d 147, 149 (1st
Cir. 2012) (denial of continuance reviewed for abuse of
discretion). Claims of this nature are not exempted from the
exhaustion requirement.
Our review of the record makes plain that Lima's appeal
to the BIA failed to raise any argument whatsoever regarding the
IJ's denial of his sought-after continuance or his request to amend
the pleadings. Lima's silence precludes him from bringing those
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claims before us now. Kinisu, 721 F.3d at 34.9 Accordingly, Lima
has failed to exhaust his administrative remedies with respect to
his due process claims, and we refuse to consider them.

Outcome: Having accounted for both Lima's words and his silence,
we see no basis for reversal in this record. We, therefore, deny
the petition for review.

9 Parenthetically, Lima's putative due process claims strike
us as nothing more than attacks on the IJ's discretionary decisions
"clothed in constitutional garb," presenting "no substantial
constitutional question." Bernal-Vallejo v. I.N.S., 195 F.3d 56,
63 (1st Cir. 1999).

Plaintiff's Experts:

Defendant's Experts:

Comments: