NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued July 9, 2014
Decided July 31, 2014
Before
RICHARD A. POSNER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 13‐3896
MIGUEL ANGEL GOMEZ AYALA, Petition for Review of an Order of the
Petitioner, Board of Immigration Appeals.
v. No. A044 098 403
ERIC H. HOLDER, JR.,
Attorney General of the United States,
Respondent.
O R D E R
Miguel Angel Gomez Ayala—a Mexican citizen who was ordered removed from
the United States as an alien convicted of controlled‐substance crimes, see 8 U.S.C.
§ 1182(a)(2)(A)(i)(II)—petitions for review of an order of the Board of Immigration
Appeals deeming him ineligible for a waiver of inadmissibility and voluntary
departure, and affirming the denial of a continuance. He contends that the Board and
the immigration judge erred by basing their rulings on his conviction for cocaine
trafficking—a conviction that Gomez Ayala says the government never proved and he
never admitted. We deny the petition for review.
No. 13‐3896 Page 2
Gomez Ayala became a lawful permanent resident in 1993. Although the details
of his criminal history are disputed (as discussed later), he apparently was convicted in
Illinois state court in 1999 of possessing cannabis and in 2005 of trafficking cocaine. He
came to the attention of immigration authorities in 2011, when he applied for admission
to the United States after traveling abroad. The Department of Homeland Security
initiated removal proceedings, charging him with inadmissibility on two grounds: as a
person convicted of controlled substance crimes, see 8 U.S.C. § 1182(a)(2)(A)(i)(II), and
as a person who “the Attorney General knows or has reason to believe . . . is or has been
an illicit trafficker in any controlled substance,” see id. § 1182(a)(2)(C). Only the first
ground—that he is a person convicted of a drug offense—is relevant here because it is
the only ground on which Gomez Ayala has been ordered removed. See SEC v. Chenery
Corp., 318 U.S. 80, 87 (1943); Alvarado‐Fonseca v. Holder, 631 F.3d 385, 388 n.1 (7th Cir.
2011).
The notice to appear in the agency’s record—the notice that was submitted to
the IJ—sets forth Gomez Ayala’s violations as numbered allegations, and two of those
allegations (allegations 4 and 5, which list his drug convictions) are significant here.
Allegation 4 refers to Gomez Ayala’s 1999 conviction for possessing cannabis and
allegation 5 refers to his 2005 cocaine‐trafficking conviction:
The Department of Homeland Security alleges that you:
. . .
4. On or about June 10, 1999 you were convicted in the Circuit Court of Cook
County at Chicago, IL for the offense of Possess Cannabis;
5. On or about June 29, 2005 you were convicted in the Circuit Court of Cook
County at Chicago, IL for the offense of Manufacture/Deliver 01‐15 Grams
Cocaine/Analog.
Gomez Ayala apparently intended to admit the 1999 conviction for possession of
cannabis (allegation 4) and deny the 2005 cocaine‐trafficking conviction (allegation 5).
But his counsel did the opposite throughout the removal proceedings, always referring
to the allegations by number. Counsel stated in a motion to change venue that Gomez
Ayala “admits allegations 1, 2, 3, 5, and 6” but “denies allegation 4.” Counsel confirmed
No. 13‐3896 Page 3
these admissions when, at the first hearing, the IJ stated, “it looks like the respondent
admitted one, two, three, five and six but denied allegation number four,” to which
counsel replied, “[t]hat is correct.” The government responded by submitting a record
of the cannabis conviction, the only conviction that counsel had denied. Counsel
conceded that Gomez Ayala was removable under § 1182(a)(2)(A)(i)(II) as a person
convicted of a controlled substance offense, but he moved for a continuance so that
Gomez Ayala could seek (through state postconviction proceedings) to withdraw his
guilty plea to the 2005 cocaine‐trafficking conviction on the ground that he was not
informed of the consequences of his plea in violation of Padilla v. Kentucky, 559 U.S. 356
(2010). The IJ granted a continuance to allow Gomez Ayala time to pursue this relief in
state court.
At the next hearing six months later, Gomez Ayala requested another
continuance pending resolution of his state postconviction challenge. The IJ denied this
request, terminated Gomez Ayala’s LPR status, and ordered him removed. In denying
the continuance, the IJ concluded that even if Gomez Ayala vacated his 2005 cocaine‐
trafficking conviction, his 1999 conviction for possession of cannabis rendered him
inadmissible and ineligible for either a waiver of inadmissibility or cancellation of
removal. A waiver was unavailable, the IJ explained, because Gomez Ayala could apply
for it only if his inadmissibility were based solely on “a single offense of simple
possession of 30 grams or less of marijuana,” see 8 U.S.C. § 1182(h), and he had not
established that his 1999 conviction “was for possession of 30 grams or less.” And
Gomez Ayala was ineligible for cancellation of removal under 8 U.S.C. § 1229b(a), the IJ
added, because he had not resided in the U.S. continuously for seven years. The “period
of continuous residence” ends “when the alien . . . has committed an offense referred to
in” § 1182(a)(2), see id. § 1229b(d)(1), and Gomez Ayala in 1999 had committed such an
offense—possession of cannabis. Finally, the IJ concluded that Gomez Ayala was
ineligible for voluntary departure because of his conviction for an aggravated felony,
see id. §§ 1229c(b)(1)(C), 1227(a)(2)(A)(iii)—his 2005 drug‐trafficking conviction,
see id. § 1101(a)(43)(B).
Gomez Ayala appealed to the Board, arguing that the 2005 cocaine‐trafficking
conviction was never admitted by him or proved by the government, and thus, the IJ
No. 13‐3896 Page 4
erred in relying on the 2005 conviction to conclude that he was ineligible for a waiver of
inadmissibility and voluntary departure, and to deny his request for a continuance.
Gomez Ayala stated in the brief to the Board that he had “expressly denied allegation 4”
and that DHS “failed to provide the Immigration Court with any record supporting
allegation 4, the one dealing with the 2005 drug trafficking offense, the most serious
allegation contained in the Notice to Appear” (emphasis added). These statements
suggest that counsel had gotten allegations 4 and 5 backwards. Counsel’s representation
that Gomez Ayala denied allegation 4 appears nonsensical in that allegation 4 (as set
forth in the notice to appear in the agency’s record) referred to the 1999 conviction for
possession of cannabis, not to the 2005 drug‐trafficking conviction that was set forth in
allegation 5.
The Board affirmed, not mentioning counsel’s apparent misreading of the notice
to appear but explaining that “[t]he respondent admitted the fact of his 2005 conviction
as alleged in the Notice to Appear and conceded removability,” thus “reliev[ing] the
DHS of the burden to provide conviction records proving that allegation and charge of
removability.” And, the Board continued, the IJ properly denied a continuance because
the possibility that the state court would vacate the 2005 conviction “was too
speculative to establish good cause for another continuance.” Finally, the Board
explained that Gomez Ayala was ineligible for voluntary departure because his 2005
conviction was for an aggravated felony.
In his petition, Gomez Ayala advances only one argument: that the IJ and the
Board erred by relying on the supposedly unproved 2005 cocaine‐trafficking conviction
to conclude that he was ineligible for a waiver of inadmissibility and voluntary
departure, and to deny his request for a continuance. He asserts that the IJ “confused
allegations number four and five in the Notice to Appear” and thus “mistakenly
thought that Petitioner admitted the allegation pertaining to the drug trafficking offense
and denied the allegation pertaining to a simple possession of marijuana, which was the
only conviction proven by the Government.” Gomez Ayala contends that this
purported mistake by the IJ led to a “disregard [of] the Government’s failure to meet its
burden of proof.”
No. 13‐3896 Page 5
The government presents a threshold argument—that this court lacks jurisdiction
to review Gomez Ayala’s petition because he is “removable by reason of having
committed a criminal offense covered in section 1182(a)(2).” 8 U.S.C. § 1252(a)(2)(C);
see Moral‐Salazar v. Holder, 708 F.3d 957, 961–62 (7th Cir. 2013). But the jurisdictional bar
identified by the government does not apply when the petitioner raises legal or
constitutional issues. See 8 U.S.C. § 1252(a)(2)(D); Moral‐Salazar, 708 F.3d at 962. And
Gomez Ayala raises a legal issue by asserting that the IJ and the Board mistakenly
relieved the government of its burden of proving the fact of his 2005 drug‐trafficking
conviction. See Cruz‐Moyaho v. Holder, 703 F.3d 991, 997 (7th Cir. 2012).
Gomez Ayala’s argument is nonetheless a nonstarter. The administrative record
shows that counsel repeatedly admitted allegation 5, which—according to the notice to
appear that was before the IJ and the Board—referred to the 2005 cocaine‐trafficking
conviction. In immigration proceedings, as elsewhere, litigants are bound by the
admissions of their attorneys. See Georgieva v. Holder, 751 F.3d 514, 521–22 (7th Cir.
2014); Hanna v. Holder, 740 F.3d 379, 387 (6th Cir. 2014); Perez‐Mejia v. Holder, 663 F.3d
403, 414–15 (9th Cir. 2011); Hoodho v. Holder, 558 F.3d 184, 192 (2d Cir. 2009). Thus, the IJ
and the Board did not err by concluding that the government was relieved of its burden
of proving the 2005 conviction.
At oral argument, we asked counsel (who represented Gomez Ayala before both
the IJ and the Board) about his apparently mistaken admissions. Counsel replied that
the notice to appear that was served on Gomez Ayala differed from the version of the
notice that was given to the IJ, in that it had allegations 4 and 5 backwards, and that this
unexplained transposition led to confusion over the particular allegations that were
admitted. The government responded at argument that it was unaware of any
differences between the two versions. But regardless of whether the notices are in fact
inconsistent, we cannot consider this argument because Gomez Ayala neither raised it
in his petition, see Veluchamy v. FDIC, 706 F.3d 810, 817 (7th Cir. 2013); Ceta v. Mukasey,
535 F.3d 639, 649 n.16 (7th Cir. 2008), nor presented it first to the Board, see Cruz‐Mayaho
v. Holder, 698 F.3d 574, 579 (7th Cir. 2012); Alvarado‐Fonseca v. Holder, 631 F.3d 385, 389
(7th Cir. 2011).
No. 13‐3896 Page 6
Accordingly, we DENY Gomez Ayala’s petition for review.