12-5052
Perez-Barrios v. Holder
BIA
Rocco, IJ
A087 947 586
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 4th day of September, two thousand fourteen.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 REENA RAGGI,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 SALVADOR PEREZ-BARRIOS, AKA SALVDOR
14 PEREZ-BARRIOS,
15 Petitioner,
16
17 v. 12-5052
18 NAC
19
20 ERIC H. HOLDER, JR., UNITED STATES
21 ATTORNEY GENERAL,
22 Respondent.
23 _____________________________________
24
25 FOR PETITIONER: Ronald D. Richey, Rockville,
26 Maryland.
27
28 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
29 General; Stephen J. Flynn, Assistant
1 Director; Karen Y. Stewart,
2 Attorney, Office of Immigration
3 Litigation, United States Department
4 of Justice, Washington, D.C.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED in part and in part GRANTED.
10 Salvador Perez-Barrios, a native and citizen of El
11 Salvador, seeks review of a November 28, 2012, decision of
12 the BIA that: (1) affirmed the January 26, 2011, decision of
13 Immigration Judge (“IJ”) Michaelangelo Rocco, denying his
14 request to withdraw his counsel’s concession of removability
15 and terminate removal proceedings; and (2) rejected as
16 defective his motion to remand to apply for asylum and
17 related relief. In re Salvador Perez-Barrios, No. A087 947
18 586 (B.I.A. Nov. 28, 2012), aff’g No. A087 947 586 (Immig.
19 Ct. Buffalo Jan. 26, 2011). We assume the parties’
20 familiarity with the underlying facts and procedural history
21 in this case.
22 A. Concession of Removability
23 We have reviewed both the IJ’s and the BIA’s opinions
24 “for the sake of completeness.” Zaman v. Mukasey, 514 F.3d
25 233, 237 (2d Cir. 2008)(quotation marks omitted). The
2
1 applicable standards of review are well established. See
2 8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder,
3 562 F.3d 510, 513 (2d Cir. 2009).
4 An alien in removal proceedings is bound by the
5 admissions of freely retained counsel absent “egregious
6 circumstances.” Hoodho v. Holder, 558 F.3d 184, 192 (2d
7 Cir. 2009) (quoting Matter of Velasquez, 19 I. & N. Dec.
8 377, 382 (B.I.A. 1986)). This Court has provided that when
9 “an IJ accepts a concession of removability from retained
10 counsel and that concession is not contradicted by the
11 record evidence, the circumstances are not ‘egregious’ in
12 any respect. To the contrary, the acceptance by an IJ of a
13 plausible concession of removability is an unremarkable
14 feature of removal proceedings.” Id. “That, in hindsight,
15 it might have been preferable for an alien to have contested
16 removability, rather than to have conceded it, does not
17 constitute ‘egregious circumstances.’” Id. at 193.
18 Here, counsel’s concession of removability is not
19 contradicted by the record. Indeed, counsel sought to
20 withdraw his concession as part of a change in legal tactic,
21 not to correct an error. Moreover, contrary to Perez-
22 Barrios’s contention, the IJ’s acceptance of his counsel’s
3
1 concession of removability did not prevent him from seeking
2 relief from removal before the IJ (he applied for voluntary
3 departure only). In the absence of egregious circumstances,
4 the agency did not err in finding Perez-Barrios bound by his
5 attorney’s concession of removability. See Hoodho, 558 F.3d
6 at 192-93; see also Matter of Velasquez, 19 I. & N. Dec. at
7 382-83. Accordingly, we deny the petition for review to
8 this extent.
9 B. Motion to Remand
10 “We review the BIA’s denial of a motion to remand for
11 consideration of new evidence for abuse of discretion, and
12 will find such abuse if ‘the Board’s decision provides no
13 rational explanation, inexplicably departs from established
14 policies, is devoid of any reasoning, or contains only
15 summary or conclusory statements; that is to say, where the
16 Board has acted in an arbitrary or capricious manner.’” Li
17 Yong Cao v. U.S. Dep’t of Justice, 421 F.3d 149, 157 (2d
18 Cir. 2005) (quoting Ke Zhen Zhao v. U.S. Dep’t of Justice,
19 265 F.3d 83, 93 (2d Cir. 2001) (internal citations
20 omitted)).
21 Here, the BIA rejected Perez-Barrios’s motion to remand
22 because it was filed by an attorney other than the attorney
4
1 of record who filed his appeal. The BIA explained that
2 Perez-Barrios was permitted only one representative of
3 record at any given time. The BIA’s ruling departed without
4 explanation from the stated policy in section 2.3(f) of the
5 BIA Practice Manual that an alien may be represented before
6 the BIA by more than one attorney at a time. See Li Yong
7 Cao, 421 F.3d at 157. Accordingly, we grant Perez-Barrios’s
8 petition for review to this extent.
9 For the foregoing reasons, the petition for review is
10 DENIED in part and in part GRANTED. Any pending request for
11 oral argument in this petition is DENIED in accordance with
12 Federal Rule of Appellate Procedure 34(a)(2), and Second
13 Circuit Local Rule 34.1(b).
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk
16
17
5