Santiago-Rodriguez v. Holder

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JULIO CESAR SANTIAGO-RODRIGUEZ, 
Petitioner, No. 06-75319
v.
 Agency No.
A073-819-676
ERIC H. HOLDER JR., Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted
December 8, 2010—Pasadena, California

Filed September 9, 2011

Before: Betty B. Fletcher, Marsha S. Berzon, and
Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Berzon;
Dissent by Judge Callahan

17139
 SANTIAGO-RODRIGUEZ v. HOLDER 17143

COUNSEL

Michael Friedberg and Mathew Ho, Friedberg & Trombi, Los
Angeles, California, and Thomas N. Saldin, the Law Offices
of Saldin & Friedberg, Los Angeles, California, for petitioner
Julio Cesar Santiago-Rodriguez.

James Arthur Hunolt, Andrew B. Insenga, and Rebecca Hoff-
berg Phillips, the Office of Immigration Litigation of the Civil
Division of the Department of Justice, Washington, DC, for
respondent Eric H. Holder Jr.

OPINION

BERZON, Circuit Judge:

This case requires us to decide whether an alien in removal
proceedings can withdraw his former attorney’s admission of
the Government’s factual allegations when the propriety of
the admission has been severely undercut by subsequent legal
developments that may, in fact, mean that the admission was
false.

FACTUAL AND PROCEDURAL HISTORY1
1
The facts recited here are those to which Santiago testified. As neither
the Immigration Judge nor the Board of Immigration Appeals made an
adverse credibility finding, we must accept Santiago’s testimony as true
for present purposes. See, e.g., Kalubi v. Ashcroft, 364 F.3d 1134, 1137
(9th Cir. 2004).
17144 SANTIAGO-RODRIGUEZ v. HOLDER
Julio Cesar Santiago-Rodriguez (“Santiago”), a native and
citizen of Mexico, lawfully entered the United States in 1991
and became a lawful permanent resident (“LPR”) in June
1999. In December 1999, Santiago returned to Mexico to
marry his fiancée Maria Maravilla Romero (“Maravilla”);
they wed on December 21, 1999 in Villamar, Mexico. Fol-
lowing the wedding, Santiago and Maravilla traveled to Chia-
pas to spend time with Santiago’s family.

At some point, Maravilla told Santiago that she would like
to accompany him back to the United States—that is, to enter
illegally. While the couple was in Chiapas, Santiago’s
brother, Luis, told Santiago the same thing. Santiago
attempted to discourage both from entering the United States
illegally, but to no avail. Accordingly, on or about January 6,
2000, Santiago, Maravilla, and Luis flew from Chiapas to Juá-
rez, Mexico, which abuts El Paso, Texas. Santiago purchased
the airline tickets from Chiapas to Juárez for Maravilla and
himself, while Luis purchased his own ticket with money he
borrowed from his aunt. While in Juárez, Santiago purchased
a counterfeit I-551 (typically called a “green card”) for
Maravilla, and Luis purchased one for himself.

The following day, Santiago walked across the U.S.-
Mexico border and proceeded to the offices of a travel agent
in El Paso to meet up with his wife and brother, who had
crossed the border with the aid of one or more coyotes (smug-
glers). Santiago testified that he did not pay the coyote(s),
suggesting instead that Luis had done so. At the travel agency,
Maravilla and Luis each purchased a ticket to fly to Los
Angeles later that day. The record is unclear as to who pur-
chased Maravilla’s ticket, but Luis purchased his own.

The three then proceeded to the El Paso airport. According
to Santiago, two Border Patrol agents in cowboy hats
approached him as he was looking at the TV monitors dis-
playing gate information in the airport lobby.2 After asking
2
In contrast, the form I-213 completed by one of the Border Patrol
agents states that Santiago approached the agents to ask for help locating
 SANTIAGO-RODRIGUEZ v. HOLDER 17145
Santiago where he was going, one of the agents demanded
Santiago produce his “papers” to “show you’re not illegal.”
Santiago produced his I-551, but was detained in the airport
terminal for approximately 20-30 minutes while his brother
and wife were separately questioned out of his earshot.

Thereafter, all three were handcuffed and led into a small
room, where they were advised of their Miranda rights, and
their bags were searched. During the bag search, the agents
found documents establishing that Maravilla and Luis’s I-
551s were fake. Santiago stated that he had an attorney in Los
Angeles, but was told that he could not talk to a lawyer until
he had a hearing in immigration court. Santiago also was
asked several questions about whether he had smuggled his
brother and/or wife into the country. Santiago testified before
the immigration judge (IJ) that he had a difficult time under-
standing the agent interrogating him, who spoke Spanish only
haltingly. The record contains a document (a form I-215B)
that purports to memorialize the interrogation, but the IJ disre-
garded it because she had concerns, including its lack of a cer-
tificate of translation, affecting its reliability.3

Following the interview, Santiago was issued a Notice to
Appear (NTA). The NTA alleged that Santiago had “know-

a particular gate and was then questioned about his immigration status.
The I-213 stated that Santiago was interrogated about his status because
of his “confusion, nervousness, manner of dress[—]which was similar to
other undocumented aliens encountered at the airport[—]and [the] actions
of [Maravilla and Luis],” both of whom “maintained a safe distance” from
the agents as Santiago asked for help.
3
The I-215B states that Santiago admitted to smuggling in both his wife
and his brother, but Santiago testified before the IJ that he told the agent
that he had helped only his wife enter the country. Santiago admitted sign-
ing the I-215B (which is in English), but says that it was never read to him
in Spanish and that he only signed it after the agent told him that the form
was just for “the judge” to decide whether he is guilty, presumably of
smuggling.
17146 SANTIAGO-RODRIGUEZ v. HOLDER
ingly encouraged, induced, assisted, abetted, or aided” his
wife and brother to enter the United States illegally, and
accordingly charged him with being removable under 8
U.S.C. § 1227(a)(1)(A)4 and (a)(1)(E)(i).5 Pursuant to 8
U.S.C. § 1226, an Immigration and Naturalization Service
(INS) agent6 set Santiago’s bond at $5,000 later that day.

Within seven to ten days after his arrest at the airport, and
while he was still detained, Santiago met with Corine Domin-
guez, an El Paso-based attorney. They spoke for ten to twenty
minutes, during which time, according to Santiago, Domin-
guez agreed “to defend [him]” and “to prove that [he] was
innocent” in exchange for $200. Dominguez did not advise
Santiago of the relief available to him and did not discuss
admitting the allegations of the NTA or conceding the charges
of removability.

Dominguez filed a motion for bond redetermination on Jan-
uary 18, 2000, requesting that Santiago’s bond be reduced and
4
Section 1227(a)(1)(A) of Title 8 of the U.S. Code incorporates the
grounds of inadmissibility as grounds of removability, stating that: “Any
alien who at the time of entry or adjustment of status was within one or
more of the classes of aliens inadmissible by the law existing at such time
is deportable.” 8 U.S.C. § 1227(a)(1)(A). One ground of inadmissibility is
that the alien, “at any time[,] knowingly . . . encouraged, induced, assisted,
abetted, or aided any other alien to enter or to try to enter the United States
in violation of law.” 8 U.S.C. § 1182(a)(6)(E).
5
Section 1227(a)(1)(E)(i) of Title 8 of the U.S. Code provides that:
“Any alien who (prior to the date of entry, at the time of any entry, or
within 5 years of the date of any entry) knowingly has encouraged,
induced, assisted, abetted, or aided any other alien to enter or to try to
enter the United States in violation of law is deportable.” 8 U.S.C.
§ 1227(a)(1)(E)(i).
6
The INS ceased to exist in 2003, and most of its functions were trans-
ferred to the Department of Homeland Security (DHS) and its subagen-
cies, including Immigration and Customs Enforcement (ICE). See
Homeland Security Act of 2002, Pub. L. No. 107-296, §§ 441, 471, 116
Stat. 2135, 2192, 2205 (codified at 6 U.S.C. §§ 251, 291); Mora-
les-Izquierdo v. Gonzales, 486 F.3d 484, 489 n.7 (9th Cir. 2007) (en banc).
 SANTIAGO-RODRIGUEZ v. HOLDER 17147
representing that Santiago would be applying for cancellation
of removal. Santiago was ineligible for this form of relief, as
he had been an LPR for less than a year. See 8 U.S.C.
§ 1229b(a) (permitting cancellation of the removal of aliens
who have been LPRs for at least five years and meet other
requirements).

Dominguez’s bond redetermination motion was unsuccess-
ful, but Santiago eventually paid the $5,000 bond. The record
is silent as to when Santiago was released on bond, but he met
with Connexion Legal (“Legal Connection”), a Los Angeles-
based notario,7 in late January or early February. Connexion
Legal agreed to help Santiago with his immigration proceed-
ings, initially by trying to have the case transferred to Los
Angeles from El Paso. On February 3, 2000, someone from
Connexion Legal mailed to the immigration court in El Paso
a motion to change the venue of Santiago’s immigration pro-
ceedings to Los Angeles. The first paragraph of the motion
states that “[Santiago] admits to the allegations of the United
Government [sic], conceding removability in this case.”
Although the motion purports to have been filed pro se by
Santiago himself, Santiago says he did not sign it and that no
one from Connexion Legal reviewed it with him or made him
aware of its contents. Santiago also maintains that the
motion’s two signatures, purporting to be those of Santiago,
are not his; the Government does not dispute this assertion,
and a comparison of the signatures on the motion with Santia-
go’s known signature supports it.
7
“The term ‘notario’ or ‘notary’ in our immigration case law refers to
individuals who either (a) hold themselves out as immigration law experts,
even though they are not attorneys; or (b) act as gatekeepers for ‘appear-
ance attorneys’ with limited or no knowledge of their client’s case.”
Avagyan v. Holder, ___ F.3d ___, 2011 WL 2586275, at *9 n.2 (9th Cir.
2011) (citing Mendeza-Mazariegos v. Mukasey, 509 F.3d 1074, 1077 n.4
(9th Cir. 2007)). Based on the record in this case, Connexion Legal falls
into the latter category.
17148 SANTIAGO-RODRIGUEZ v. HOLDER
On February 22, 2000, the INS mailed a notice that it did
not oppose Santiago’s first motion to change venue. Two days
later, Dominguez, apparently unaware of that motion, hand
delivered a second motion to change venue, along with a
motion to withdraw as Santiago’s counsel, to the INS District
Counsel in El Paso. This motion also states that Santiago “ad-
mits the allegations in the [NTA] and concedes that he is
removable,” and contains the boilerplate representation that
Santiago would be applying for “Political Asylum, Voluntary
Departure and/or other relief from removal available to him
under the Immigration Laws of the United States.”

The record is unclear as to which motion to change venue
was granted or when it was granted, but Santiago’s master
calendar hearing was held in Los Angeles on April 26, 2000.
Santiago was represented at this hearing and the four that fol-
lowed by attorney Xavier Vega. Vega’s services were appar-
ently secured by Connexion Legal, to which Santiago paid
$300 for each of Vega’s appearances. Santiago only met with
Vega just prior to each hearing, for a few minutes each time.

The master calendar hearing was continued until May 24,
2000. At the continued hearing, the IJ noted that Santiago had
admitted the allegations and conceded removability in a prior
motion to change venue. Vega so acknowledged, but stated
that he would be seeking a waiver of the grounds of remov-
ability under 8 U.S.C. § 1182(d)(11). Section 1182(d)(11)
provides that certain aliens guilty of smuggling their spouses,
parents, or children into this country can apply for a waiver
of that ground of removability. See 8 U.S.C. § 1182(d)(11);
id. § 1227(a)(1)(E). The hearing was continued again until
August 31, 2000, at which time Vega again acknowledged
being aware of the concessions, but again asserted that Santi-
ago was entitled to a waiver. The INS attorney, however, indi-
cated at this hearing that the Government would be contesting
Santiago’s eligibility for a waiver in light of the concession
that he had smuggled his brother into the United States, as no
waiver is available to aliens who smuggle siblings. The hear-
 SANTIAGO-RODRIGUEZ v. HOLDER 17149
ing was continued once more, until January 17, 2001, at
which time Vega acknowledged that the earlier concessions
made Santiago ineligible for a waiver, and Santiago was
ordered removed to Mexico. At no time did Vega seek to
withdraw the concessions of Dominguez or Connexion Legal.

Santiago paid Connexion Legal to prepare his appeal to the
BIA. Connexion Legal filed an appeal brief on Santiago’s
behalf; again, Santiago was not asked to review the brief, and
again, the document contains a signature that purports to be
Santiago’s, but is not. The BIA dismissed Santiago’s appeal
on February 12, 2002.

In January 2003, Santiago met with Ronald Matten, an
attorney with the law firm that currently represents him. Mat-
ten agreed to review Santiago’s file, which he did on February
5, 2003, discovering what he believed to be ineffective assis-
tance of counsel. In preparation for filing a motion to reopen,
Matten informed Dominguez by letter dated March 20, 2003
that he would be filing a complaint regarding her representa-
tion of Santiago. When Dominguez did not respond, Matten
filed a complaint on Santiago’s behalf with the Texas Bar by
letter dated April 16, 2003.8 Additionally, on March 23, 2003,
Matten filed a complaint with the Consumer Protection Unit
of the Los Angeles County District Attorney’s Office on San-
tiago’s behalf against Connexion Legal.9 No complaint was
ever filed against Vega.10
8
The record contains no information about the resolution of this com-
plaint, and Dominguez has no public disciplinary history noted on the
website of the State Bar of Texas, which lists Dominguez as currently
working for ICE.
9
The Consumer Protection Unit responded by letter dated March 27,
2003, stating that the complaint had been referred to the Los Angeles City
Attorney for the initial investigation. No further action on this complaint
is noted in the record.
10
The California Bar disciplined Vega in 2007, however, for conduct
somewhat similar to what occurred here. See Order, Matter of Xavier
Vega, Nos. 05-O-01314-DFM & 05-O-03887-DFM (Cal. Bar Ct. Dec. 5,
2007), available at http://members.calbar.ca.gov/courtDocs/05-O-
01314.pdf.
17150 SANTIAGO-RODRIGUEZ v. HOLDER
Matten filed the motion to reopen Santiago’s proceedings
with the BIA on April 29, 2003. About a week later, the Gov-
ernment filed a Statement of Non-Opposition to the Motion to
Reopen. The BIA granted the motion and remanded the case
for further proceedings.

The reopened proceedings were convened before a differ-
ent IJ on March 18, 2004. During this hearing, Matten told the
IJ that Santiago was seeking to withdraw the prior plea; to
deny the charges of removability; and to suppress the evi-
dence obtained by the Government on the day Santiago was
arrested in El Paso. The IJ continued the hearing to give San-
tiago time to file his motion to suppress.

At the beginning of the final hearing, the IJ summarily
denied the motion to suppress and the motion to withdraw
Santiago’s plea. When Santiago’s counsel protested, the IJ
permitted Santiago to put on evidence regarding why he
should be permitted to withdraw the admissions and conces-
sions.

Santiago then testified as recited above. Following Santia-
go’s testimony and cross-examination, the IJ rendered her oral
decision, which had two principal holdings: First, the IJ held
that Santiago had not demonstrated the “egregious circum-
stances” necessary to justify withdrawing the admissions
made by Dominguez on Santiago’s behalf in the second
motion to change venue.11 Second, the IJ reasoned that under
Matter of Velasquez, 19 I. & N. Dec. 377 (BIA 1986), Domin-
guez’s choice to admit the allegations is presumed to have
been a strategic decision that binds Santiago, and because the
admission likely prompted the INS not to oppose the Motion
to Change Venue, Santiago had benefitted from Dominguez’s
actions. Moreover and “most importantly,” according to the
11
In light of the apparent forgery of Santiago’s signature, the IJ explic-
itly did not rely on the admissions made in the first Motion to Change
Venue filed by Connexion Legal.
 SANTIAGO-RODRIGUEZ v. HOLDER 17151
IJ, Santiago had appeared in Immigration Court while repre-
sented by Vega and “reaffirmed the pleadings,” yet Santiago
did not allege that Vega had been ineffective.

In the alternative, the IJ held that even if Santiago could
withdraw his plea, his testimony “is sufficient to find [him]
removable as charged.”12 The IJ said that Santiago’s assertion
that he did not help his brother enter illegally because Luis
had, at all times, paid his own way, was “a mere detail,”
because Santiago “was aware of and assisted in [Luis’]
arrangements [to enter illegally] by accommodating.” The IJ
concluded by noting that:

Though the word “accommodating” is not in the stat-
ute, it does say “knowingly encouraged, induced,
assisted, abetted, or aided.” The Court finds that the
respondent did assist and abet the brother in travel-
ing through Mexico, coming to the border, knowing
full well the intentions of the brother, knowing that
the brother did not have a ticket to return to Mexico,
knowing [w]hat the brother’s intentions were, in
leaving his wife in the company of the brother,
knowing full well that the wife’s intentions were
having made those accommodations. Therefore, the
charge is sustained.

In light of her holding that Santiago had helped Luis enter
illegally, the IJ declared Santiago removable as charged,
determined him ineligible for any waiver, and ordered him
removed.

Santiago timely appealed to the BIA, making the same
arguments he presses here. Pursuant to 8 C.F.R.
12
Due to a number of concerns, including its reliability, the IJ explicitly
disregarded any evidence obtained during Santiago’s arrest at the El Paso
airport (the I-213 and I-215B). As the contested evidence was excluded
from consideration, we do not consider Santiago’s suppression argument.
17152 SANTIAGO-RODRIGUEZ v. HOLDER
§ 1003.1(e)(5), a single member of the BIA reviewed the
appeal, which was dismissed in a per curiam order dated
October 24, 2005. The BIA’s order stated, in relevant part:

We . . . affirm the Immigration Judge’s application
of Matter of Velasquez, 19 I. & N. Dec. 377 (BIA
1986), to the facts of the instant case, and we affirm
her conclusion that there was no showing of “egre-
gious circumstances” with respect to [Santiago’s]
prior counsel’s concession to the charges of remov-
ability or the change of venue. Id. Finally, we affirm
the Immigration Judge’s ultimate conclusion that the
respondent did not suffer ineffective assistance of
counsel.

The BIA, however, “decline[d] to address the remainder of
the issues raised in [Santiago’] brief,” including that the IJ
erred in holding, in the alternative, that Santiago’s testimony
established that by “accommodating” Luis’s attempt to enter
the country illegally, Santiago was removable as an alien
smuggler and ineligible for a waiver of that ground of remov-
ability.

Santiago timely petitioned for review of the BIA’s order.

SCOPE & STANDARD OF REVIEW

“Where, as here, the BIA ‘has reviewed the IJ’s decision
and incorporated portions of it as its own, we treat the incor-
porated parts of the IJ’s decision as the BIA’s.’ ” Blanco v.
Mukasey, 518 F.3d 714, 718 (9th Cir. 2008) (quoting Molina-
Estrada v. INS, 293 F.3d 1089, 1093 (9th Cir. 2002)). “In
reviewing the decision of the BIA, we consider only the
grounds relied upon by that agency.” Andia v. Ashcroft, 359
F.3d 1181, 1184 (9th Cir. 2004) (per curiam).

“Questions of law, including claims of due process viola-
tions due to ineffective assistance, we review de novo.”
 SANTIAGO-RODRIGUEZ v. HOLDER 17153
Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.
2005); see also Jie Lin v. Ashcroft, 377 F.3d 1014, 1023 (9th
Cir. 2004). Factual findings, including “findings of fact
regarding counsel’s performance,” are reviewed for substan-
tial evidence, id., meaning that they “are ‘conclusive unless
any reasonable adjudicator would be compelled to conclude
the contrary.’ ” Tawadrus v. Ashcroft, 364 F.3d 1099, 1102
(9th Cir. 2004) (quoting 8 U.S.C. § 1252(b)(4)(B)).

DISCUSSION

To deport an alien, such as Santiago, who has been lawfully
admitted to this country, the Government has the burden of
establishing “by clear, unequivocal, and convincing evidence”
that he is removable under one or more statutory grounds.
Hernandez-Guadarrama v. Ashcroft, 394 F.3d 674, 679 (9th
Cir. 2005) (citation omitted); see also 8 U.S.C.
§ 1229a(c)(3)(A). Here, the Government has charged Santi-
ago with being removable under 8 U.S.C. §§ 1227(a)(1)(E)(i)
and 1182(a)(6)(E) for smuggling his wife and brother into the
United States. To sustain those charges, the Government must
prove by clear and convincing evidence that Santiago took
actions with regard to his wife and brother that amount to
“knowingly . . . encourag[ing], induc[ing], assist[ing], abett[-
ing], or aid[ing]” their unlawful entry into the United States.
8 U.S.C. § 1227(a)(1)(E)(i); id. § 1182(a)(6)(E); see also
Aguilar Gonzalez v. Mukasey, 534 F.3d 1204, 1209 (9th Cir.
2008); Altamirano v. Gonzales, 427 F.3d 586,594 (9th Cir.
2005); Hernandez-Guadarrama, 394 F.3d at 679-80.

Under certain circumstances, a factual admission made by
an alien, or his attorney on his behalf, can satisfy the Govern-
ment’s burden. By regulation, for example, the IJ must require
the alien “to plead to the notice to appear by stating whether
he or she admits or denies the factual allegations and his or
her removability under the charges contained therein.” 8
C.F.R. § 1240.10(c).13 If the individual admits the factual alle-
13
By statute and regulation, the NTA must specify, inter alia, the alien’s
“acts or conduct alleged to be in violation of law” and “the charges against
17154 SANTIAGO-RODRIGUEZ v. HOLDER
gations at this stage and the IJ accepts the admission, it binds
the alien and “relieve[s] the [G]overnment of the obligation to
present any evidence on th[at] factual question.” Perez-Mejia
v. Holder, 641 F.3d 1143, 1154 (9th Cir. 2011); see also Shin
v. Mukasey, 547 F.3d 1019, 1024 (9th Cir. 2008); Barragan-
Lopez v. Mukasey, 508 F.3d 899, 905 (9th Cir. 2007). Typi-
cally, an attorney’s in-court admission of the NTA’s allega-
tions made on behalf of his alien client is treated no
differently. See Perez-Mejia, 641 F.3d at 1146 (noting that
where counsel expressly conceded removability at a hearing
and the concession was “correct as a matter of law,” the gov-
ernment’s burden to prove removability was satisfied).

Santiago does not contest that he helped smuggle his wife,
and therefore does not seek to withdraw that admission.14 The
admission that Santiago does seek to withdraw—that he
“knowingly encouraged, induced, assisted, abetted, or aided”
his brother Luis “to enter or try to enter the United States”
illegally—was made on his behalf by his attorney, Domin-
guez, in a motion to change venue.15 An admission made by
an attorney in a written filing is governed by the BIA’s prece-
dential opinion Matter of Velasquez, 19 I. & N. Dec. 377
(BIA 1986).

[him] and the statutory provisions alleged to have been violated.” 8 U.S.C.
§ 1229(a)(1)(C) & (D); 8 C.F.R. § 1003.15(b)(3) & (4).
14
As previously mentioned, the admission that he smuggled his wife
renders Santiago removable, but that ground of removability can be
waived. See 8 U.S.C. § 1182(d)(11); id. § 1227(a)(1)(E). Santiago never
had the opportunity to seek such a waiver, however, because the IJ held
that he was removable for smuggling his brother, for which no waiver is
available.
15
Whether Santiago “knowingly encouraged, induced, assisted, abetted,
or aided” Luis’s illegal entry involves questions of both law and fact. The
law defines what actions count as “encourag[ing], induc[ing], assist[ing]
abett[ing] or aid[ing]” another to illegally enter the country; whether San-
tiago took one of those unlawful acts is a question of fact. Dominguez’s
factual admission, therefore, was that Santiago committed an unlawful
action with regard to Luis’s illegal entry.
 SANTIAGO-RODRIGUEZ v. HOLDER 17155
In Velasquez, as here, the immigrant’s first attorney admit-
ted the factual allegations in the charging document and con-
ceded removability in a motion to change venue. See id. at
378. When the Government did not oppose the move, the
motion was granted. See id. After the proceedings were com-
menced in the new venue, Velasquez (with the aid of a new
attorney) denied the allegations. See id. at 379. The Govern-
ment then introduced the motion to change venue as evidence
of Velasquez’s removability. The IJ overruled Velasquez’s
objections, admitted the evidence, and on that basis ordered
him deported. See id.

[1] On appeal, the BIA affirmed and set forth the general
rule applicable here: “Absent egregious circumstances”—an
exception we discuss in a moment—an attorney’s written
admission “is binding on [the] alien client and may be relied
upon as evidence of [removability]” when that admission is:
(1) “distinct” and (2) “formal,” and made (3) “by an attorney
acting in his professional capacity” (4) “as a tactical deci-
sion.” Id. at 382 (citations omitted).

We first consider whether the BIA erred in holding that
Santiago could be bound by his lawyers’ admissions. The first
two requirements are not met as to Vega. Although the IJ held
that the “most important[ ]” reason for denying Santiago’s
request to withdraw the admissions was that Vega had “reaf-
firmed” them, that’s just not so. As the IJ herself said, Vega
merely acknowledged that he was aware that the concessions
had already been made and that they made Santiago ineligible
for a waiver. The IJ faulted Vega for not seeking to “withdraw
the plea or challenge the sufficiency of the plea,” but those
failures were omissions. Under Velasquez, an omission or
failure to object cannot bind an alien because, by definition,
neither is a “distinct and formal admission.” Velasquez, 19 I.
& N. Dec. at 382. Santiago therefore never needed to be
relieved of admissions or concessions made by Vega, as Vega
never made any.
17156 SANTIAGO-RODRIGUEZ v. HOLDER
[2] As to Dominguez, the first three of the Velasquez
requirements are unquestionably met. Dominguez’s admis-
sions were “distinct and formal, for they appear in a pleading
filed with the immigration court,” and were made “at a time
when [she] was [Santiago’s] official attorney of record.” Id.
The record as to the fourth requirement—that the decision to
admit the factual allegations be a “tactical decision”—is rela-
tively thin, but the BIA had an adequate basis for holding that
it was met. As it noted, there is a presumption that Domin-
guez’s decision was a tactical one. See id. That presumption
is corroborated in this case by the fact that Dominguez’s deci-
sion to admit the allegations and concede removability made
the motion to change venue more likely to be granted. See id.
at 383 (“[Velasquez’s attorney] reasonably may have con-
cluded that by conceding deportability he would relieve the
[Government] of its burden of producing the evidence and
witnesses needed to prove the respondent’s deportability and
thereby heighten the chance that the [Government] would not
oppose a change of venue.”).16 The BIA thus did not err in
holding that Dominguez’s factual admissions and concession
of removability could be imputed to Santiago. See id. at 382.

[3] But that is not the end of our inquiry, for Velasquez sets
forth three types of “egregious circumstances” that, if present,
justify relieving an alien of his attorney’s admissions, even
when those admissions meet the previously-discussed criteria.
Although not couched in constitutional terms, the “egregious
circumstances” Velasquez identifies are all related to the due
process guarantee that removal proceedings accord with fun-
damental fairness. To comply with due process, evidence
relied on in removal proceedings must be probative and its
16
In considering a motion to change venue, IJs determine whether good
cause exists by “balancing the factors . . . relevant to the venue issue,”
including “administrative convenience, expeditious treatment of the case,
location of witnesses, and cost of transporting witnesses or evidence to a
new location.” Matter of Rahman, 20 I. & N. Dec. 480, 482 (BIA 1992)
(citation omitted).
 SANTIAGO-RODRIGUEZ v. HOLDER 17157
use must be fundamentally fair. See Rojas-Garcia v. Ashcroft,
339 F.3d 814, 823 (9th Cir. 2003); Espinoza v. INS, 45 F.3d
308, 310 (9th Cir. 1995); see also 8 U.S.C. § 1229a(c)(3)(A)
(“No decision on [removability] shall be valid unless it is
based upon reasonable, substantial, and probative evidence.”).
As will become evident, Velasquez’s “egregious circum-
stances” all concern situations in which an attorney’s admis-
sion is not probative of the truth of the NTA’s factual
allegation, or where using the admission as evidence of
removability would not be fundamentally fair, or both.

The first circumstance in which an alien must be relieved
of an admission of counsel is if binding him to that admission
would “produce[ ] an unjust result.” Velasquez, 19 I. & N.
Dec. at 383. An inadvertent admission would fall into this cat-
egory. See, e.g., Ali v. Reno, 829 F. Supp. 1415, 1425
(S.D.N.Y. 1993) (holding, in habeas corpus proceeding
reviewing the rescission of permanent resident status, that the
alien could not withdraw the prior concessions of counsel
because “there has been no showing that counsel’s conces-
sions regarding rescission and excludability were inadvertent,
unfair or extraordinary”), aff’d 22 F.3d 442 (2d Cir. 1994); cf.
Cortez-Pineda v. Holder, 610 F.3d 1118, 1122 n.2 (9th Cir.
2010) (refusing to bind the government to a mistaken factual
assertion regarding the alien’s entry date). So, too, would a
situation “where the propriety of an admission or concession
has been undercut by an intervening change in law.” Matter
of Chavez-Mendoza, No. A90 542 948, 2005 WL 649052, at
n.3 (BIA Feb. 2, 2005) (unpub.); see, e.g., Huerta-Guevara v.
Ashcroft, 321 F.3d 883, 886 (9th Cir. 2003) (permitting an
alien to challenge his removability, despite conceding it
before the IJ, because an intervening change in the law meant
that he was not, in fact, removable).

The second circumstance in which an alien is not bound by
his counsel’s factual admissions or concession of removabil-
ity is if the alien subsequently offers evidence proving that
“the factual admissions and concession of [removability] were
17158 SANTIAGO-RODRIGUEZ v. HOLDER
untrue or incorrect.” Velasquez, 19 I. & N. Dec. at 383; see,
e.g., Mai v. Gonzales, 473 F.3d 162, 167 (5th Cir. 2006)
(reversing the BIA’s denial of a motion to reopen, where the
alien’s prior attorney had admitted the NTA’s factual allega-
tions, which the alien “strongly denied”); cf. Torres-Chavez,
567 F.3d at 1102 (refusing to permit an alien to withdraw his
attorney’s tactical decision to admit alienage because, inter
alia, the attorney “simply conceded that [his client] was an
alien, a fact that [his client] has never suggested is untrue”);
Roman v. Mukasey, 553 F.3d 184, 187 (2d Cir. 2009) (reject-
ing the argument that the Government should have had to sub-
mit evidence of an alien’s prior conviction, despite an
attorney’s admission, because, inter alia, the alien “does not
allege that the admissions were inaccurate”); Matter of Saleh,
No. A096 437 096, 2008 WL 5025192 (BIA Oct. 28, 2008)
(per curiam) (holding that the IJ did not abuse his discretion
in declining to allow an alien to withdraw admissions under
Velasquez because “the respondent was unable to demonstrate
that the [previously-admitted] allegations were false”).

The third and final circumstance in which an alien can
withdraw his attorney’s admissions is where such admissions
“were the result of unreasonable professional judgment,”
Velasquez, 19 I. & N. Dec. at 383—i.e., ineffective assistance
of counsel. If, for example, Dominguez admitted the allega-
tions and conceded Santiago’s removability without a factual
basis for doing so, that circumstance would justify disregard-
ing the admissions. See, e.g., Matter of Morales-Bribiesca,
No. A047 770 293, 2010 WL 4500889 (BIA Oct. 18, 2010)
(unpub.) (“[T]he respondent’s prior attorney admitted that she
conceded the respondent’s removability [for alien smuggling]
without first speaking to the respondent or discussing the fac-
tual allegations with the respondent. . . . [G]iven the egre-
giousness of the representation, we do not deem the attorney’s
admission binding on the respondent.” (citing Velasquez, 19
I. & N. Dec. at 382)); Matter of Shafiee, No. A24 107 368,
2007 WL 1168488 (BIA Mar. 2, 2007) (unpub.) (granting a
motion to reopen and holding that an attorney’s concession of
 SANTIAGO-RODRIGUEZ v. HOLDER 17159
removability based on the alien’s “insistence on expediting a
case is no excuse for failing to research and advise a client
that there is no sound basis for the charges”).

On the other hand, in circumstances in which the attorney,
after carefully weighing all the relevant facts and exploring
the available legal options, decides that the best course of
action is to admit the factual allegations and concede remov-
ability, it is unlikely that she rendered ineffective assistance,
even if that decision appears unwise in hindsight. See, e.g.,
Torres-Chavez v. Holder, 567 F.3d 1096, 1101-02 (9th Cir.
2009) (holding that an attorney was not ineffective for aban-
doning a legal defense that had “dismal prospects for suc-
cess,” conceding removability, and “focusing the court’s
attention on a particular basis for relief”) (citation omitted);
Magallanes-Damian v. INS, 783 F.2d 931, 934 (9th Cir. 1986)
(holding that an attorney’s decision to forego a motion to sup-
press evidence of alienage, to admit alienage, and to concede
removability in exchange for a lengthy voluntary departure
period was not ineffective assistance, and therefore the aliens
were bound by his admissions, because the attorney’s deci-
sion was “based on his belief that pending amnesty legislation
would allow petitioners to become lawful permanent resi-
dents.”); Thorsteinsson v. INS, 724 F.2d 1365, 1367 (9th Cir.
1983) (holding that an attorney’s decision to forego a defense
and to concede removability was not ineffective assistance,
and therefore the aliens were bound by his concession,
because in exchange, he “was able to secure an extended
period during which the [aliens] could liquidate their assets in
an orderly fashion and still voluntarily leave the country”);
Rodriguez-Gonzalez v. INS, 640 F.2d 1139, 1142 (9th Cir.
1981) (holding that an attorney’s decision to admit his clients’
immigration status and forego a motion to suppress was made
to focus attention on a labor law defense and therefore not
ineffective assistance, so the aliens could be bound to the
admissions).

[4] Santiago has persuasive arguments that all three egre-
gious circumstances are present here. Before addressing the
17160 SANTIAGO-RODRIGUEZ v. HOLDER
particular egregious circumstances, we emphasize that what
actions counted as alien smuggling was relatively unclear in
this circuit until Altamirano, 427 F.3d at 592. Altamirano was
decided in 2005, some eight months after the IJ issued her
opinion in this case. It held that alien smuggling “requires an
affirmative act of help, assistance, or encouragement” that is
not satisfied by “mere presence and knowledge” that an
accompanying alien is attempting to enter the country ille-
gally. Id.; see also Aguilar Gonzales, 534 F.3d at 1209 (hold-
ing that “[a]cquiescence is not an affirmative act” supporting
alien smuggling).

[5] The pre-Altamirano ambiguity helps explain the IJ’s
alternate holding—that even if Santiago could withdraw
Dominguez’s admission, his testimony alone established that
he had smuggled his brother by “accommodating” Luis’s
attempt to enter the United States illegally. That said, if the
IJ’s decision was inconsistent with Altamirano, then the IJ
erred as a matter of law; it does not matter that Altamirano
was decided after the IJ’s decision, because “[a] judicial con-
struction of a statute is an authoritative statement of what the
statute meant before as well as after the decision of the case
giving rise to that construction.” Rivers v. Roadway Express,
511 U.S. 298, 312-13 (1994) (footnote omitted); see also
Aguilar Gonzalez, 534 F.3d at 1208 n.2 (“Although Altami-
rano was decided after the IJ rendered his decision, the hold-
ing is applicable here because it establishes the proper
interpretation of the statute since the statute’s inception.” (cit-
ing United States v. City of Tacoma, 332 F.3d 574, 581 (9th
Cir. 2003)).

[6] Dominguez’s factual admission that Santiago was
guilty of smuggling Luis necessarily incorporated the legal
background applicable at the time—in particular, what facts
were required, as a matter of law, to make one guilty of smug-
gling. As explained, Altamirano rendered “a change, or at
least a significant clarification, of the law.” Huerta-Guevara,
321 F.3d at 886. Binding Santiago to the admission that he
 SANTIAGO-RODRIGUEZ v. HOLDER 17161
smuggled his brother Luis even after Altamirano would “pro-
duce[ ] an unjust result,” Velasquez, 19 I. & N. Dec. at 383,
if Santiago can make a prima facie showing that his actions
would not constitute smuggling under the clarified, correct
interpretation of the smuggling statute. See Huerta-Guevara,
321 F.3d at 886; Velasquez, 19 I. & N. Dec. at 383.

But even though the BIA dismissed Santiago’s appeal a
year after Altamirano was decided, it never acknowledged the
change in the governing law and, in fact, refused to consider
the IJ’s alternative holding that Santiago’s testimony demon-
strated he was guilty of smuggling. Instead, the BIA dis-
missed Santiago’s appeal solely on the basis that
Dominguez’s admission of the NTA’s factual allegation was
sufficient evidence from which the IJ could find Santiago
removable. Thus, the BIA never considered whether there was
“evidence reveal[ing] a reasonable likelihood” that Santiago
would not be removable under the correct statutory interpreta-
tion, Ali v. Holder, 637 F.3d 1025, 1032 (9th Cir. 2011)
(defining “[a] prima facie case”), and so has not yet evaluated
whether Velasquez’s first “egregious circumstance” is present.
We therefore cannot consider the issue on appeal, and would
remand if Santiago is not entitled to relief on the issues that
we can reach. See INS v. Ventura, 537 U.S. 12, 16 (2002) (per
curiam); Pannu v. Holder, 639 F.3d 1225, 1229 (9th Cir.
2011).

Additionally, although the BIA’s refusal to review the IJ’s
alternate holding means we cannot consider its merits either,
see Andia, 359 F.3d at 1184, that holding does shed light on
one aspect of the IJ’s refusal to let Santiago withdraw Domin-
guez’s admission: the IJ clearly thought she was refusing to
permit Santiago to withdraw a factual admission that was
true. From the IJ’s point of view, it did not really matter
whether Santiago could withdraw the admission that he had
smuggled Luis or not, because she thought Santiago’s testi-
mony independently established that he was guilty of smug-
gling. But if the IJ’s alternative holding was erroneous, and
17162 SANTIAGO-RODRIGUEZ v. HOLDER
Santiago’s testimony established that he had not provided
Luis “an affirmative act of help, assistance, or encourage-
ment,” Altamirano, 427 F.3d at 592, then the IJ refused to
allow Santiago to withdraw an admission that record evidence
demonstrated was false.

[7] An important implication of the BIA’s refusal to con-
sider the IJ’s alternative holding, then, is that it ordered Santi-
ago removed on the basis of an admission that might be false.
The BIA’s implicit, perhaps inadvertent, holding—that a legal
permanent resident can be removed on the basis of a bare-
bones admission made by an attorney in a written motion,
despite record evidence demonstrating that the admission
could be false due to changes in the legal landscape—is
inconsistent with Velasquez and due process. Binding an alien
to an erroneous factual admission of his attorney, and order-
ing him removed from this country on that basis, would “de-
prive[ ] [Santiago] of an[ ] opportunity to be heard, present
evidence, [and to] press [his] case fully.” Torres-Chavez, 567
F.3d at 1102 (citation and quotation marks omitted, last alter-
ation in original). In other words, if the IJ’s alternate holding
was erroneous, an issue we cannot consider based on the cur-
rent posture of the case, then Velasquez’s second “egregious
circumstance” would be present, and Santiago should have
been relieved of Dominguez’s admission. See Velasquez, 19
I. & N. at 383.

[8] We turn, therefore, to the third “egregious circum-
stance”: whether Dominguez’s admission was the result of
ineffective assistance of counsel.17 See id. In immigration pro-
ceedings, the right to effective assistance of counsel “is gov-
erned by the Fifth Amendment due process right to a fair
hearing.” Lara-Torres v. Ashcroft, 383 F.3d 968, 972 (9th Cir.
2004) (emphasis omitted), amended by 404 F.3d 1105 (9th
Cir. 2005). “Ineffective assistance of counsel in a deportation
proceeding is a denial of due process under the Fifth Amend-
17
The BIA did reach this “egregious circumstance,” albeit summarily.
 SANTIAGO-RODRIGUEZ v. HOLDER 17163
ment if the proceeding was so fundamentally unfair that the
alien was prevented from reasonably presenting his case.”
Ortiz v. INS, 179 F.3d 1148, 1153 (9th Cir. 1999) (internal
quotation marks omitted). To show that Dominguez’s repre-
sentation of him was so ineffective that it violated his right to
due process, Santiago must demonstrate both that Domin-
guez’s performance was deficient and that he was prejudiced
thereby. See Torres-Chavez, 567 F.3d at 1100-01; Lin, 377
F.3d at 1027.

[9] We first consider whether Dominguez’s performance
was deficient. As mentioned, the law regarding what actions
constitute alien smuggling was somewhat ambiguous until
Altamirano. Given the uncertain state of the law at the time,
it would be difficult to fault Dominguez for admitting the
NTA’s allegation that Santiago smuggled Luis if she had suf-
ficient knowledge of the facts to make a strategic judgment
based on the plausible statutory interpretations. See Torres-
Chavez, 567 F.3d at 1102. Santiago’s testimony, however,
indicates that Dominguez did not bother to investigate any
details about what happened, nor did she inform Santiago that
she intended to admit the allegations that he had smuggled
both his wife and brother. Although Dominguez apparently
saw copies of the I-213 and I-215 that purported to memorial-
ize the airport interrogation—documents the IJ later deter-
mined to be unreliable—Santiago testified that he told
Dominguez that he smuggled only his wife, and not his
brother, and that the documents’ account was untrue. Absent
an investigation into the discrepancy between her client’s
story and the NTA’s allegations, Dominguez had no basis for
admitting the allegations.

[10] The serious consequences of the admission, moreover,
were as clear then as they are now. The admission effectively
denied Santiago the “opportunity to be heard, present evi-
dence, [and to] press [his] case fully,” Torres-Chavez, 567
F.3d at 1102 (citations and quotation marks omitted), and “en-
sured that he was deprived of all possibility for relief from
17164 SANTIAGO-RODRIGUEZ v. HOLDER
deportation.” Mai, 473 F.3d at 167; cf. Singh v. Holder, ___
F.3d ___, 2011 WL 2899607, at *4-5 (9th Cir. 2011) (holding
that counsel rendered ineffective assistance when his errors
prevented an alien from filing a motion to reopen and poten-
tially rendered him ineligible for adjustment of status). In
light of the consequences, Dominguez’s admission of the fac-
tual allegation without any factual basis for doing so clearly
constitutes deficient performance. See Nehad v. Mukasey, 535
F.3d 962, 971-72 (9th Cir. 2008) (holding that an attorney’s
actions depriving his client of the “authority to decide
whether, and on what terms, to concede his case” constituted
deficient performance); Mai, 473 F.3d at 167; Lin, 377 F.3d
at 1027; cf. Torres-Chavez, 567 F.3d at 1102.

That conclusion is bolstered by other indicia of ineffective
assistance, such as Dominguez’s assertion in the motion for
bond redetermination that Santiago would be applying for a
form of relief (cancellation of removal) for which he was inel-
igible; the boilerplate representation in the motion to change
venue that Santiago would be applying for “Political Asylum,
Voluntary Departure and/or other relief from removal avail-
able to him under the Immigration Laws of the United
States;” and Dominguez’s failure to respond to the detailed
complaint Santiago mailed her regarding her representation of
him.

[11] The prejudice to Santiago, moreover, is clear. In situa-
tions, such as this, where an attorney’s incompetence prevents
an alien from presenting his case altogether, “the proceedings
are subject to a ‘presumption of prejudice,’ and we will find
that [the alien] has been denied due process if he can demon-
strate ‘plausible grounds for relief’ on his underlying claim.”
Ray v. Gonzales, 439 F.3d 582, 587 (9th Cir. 2006) (quoting
Dearinger ex rel. Volkova v. Reno, 232 F.3d 1042, 1045-46
(9th Cir. 2000)); see also Lin, 377 F.3d at 1027. Although the
case law regarding the reach of the smuggling ground of
deportation was not settled at the time the admission was
entered, there was certainly a plausible argument then—and
 SANTIAGO-RODRIGUEZ v. HOLDER 17165
a strong one now, given Altamirano—that counsel could have
made regarding its inapplicability to Santiago had she
inquired and become aware of the facts. See Aguilar Gonza-
lez, 534 F.3d at 1209; Altamirano, 427 F.3d at 594.

[12] In sum, we hold that Dominguez’s admission of the
NTA’s allegation that Santiago smuggled his brother Luis was
the product of ineffective assistance of counsel and that it
prejudiced Santiago. See Ray, 439 F.3d at 587. The BIA
therefore erred in not permitting Santiago to withdraw the
admission. See Velasquez, 19 I. & N. Dec. at 383.

CONCLUSION

The petition for review is granted. We remand to the BIA
for it to consider the IJ’s alternative holding that Santiago’s
testimony established that he “knowingly encouraged,
induced, assisted, abetted, or aided” his brother Luis to enter
the United States illegally. 8 U.S.C. § 1227(a)(1)(A) &
(a)(1)(E)(i); see Hernandez-Cruz v. Holder, ___ F.3d ___,
2011 WL 2652461, at *11 (9th Cir. 2011) (“[O]ur review is
limited to ‘[t]he grounds upon which . . . the record discloses
that [the agency’s] action was based.’ ” (quoting SEC v.
Chenery Corp., 318 U.S. 80, 87 (1943) (all but first alteration
in original)); Andia, 359 F.3d at 1184 (“If we conclude that
the BIA’s decision cannot be sustained upon its reasoning, we
must remand to allow the agency to decide any issues remain-
ing in the case.”). If the agency ultimately concludes that the
Government has not carried its burden of proving that Santi-
ago is removable for smuggling his brother, Santiago must be
given the opportunity to seek a waiver for the ground of
removability that he does not contest, the smuggling of his
wife.

PETITION GRANTED; REMANDED.
17166 SANTIAGO-RODRIGUEZ v. HOLDER
CALLAHAN, Circuit Judge, dissenting:

After Santiago entered formal admissions to the allegations
in the Notice to Appear and conceded removability, the Gov-
ernment agreed not to oppose his Motion to Change Venue.
Now — several years and a couple of different attorneys later
— Santiago seeks to withdraw his formal admissions. How-
ever, he has not shown either that the admissions he made
were false, or that there are egregious circumstances compel-
ling the withdrawal of those admissions. Accordingly, I
respectfully dissent.

As the majority recognizes, the general legal framework for
this case was set forth in Matter of Velasquez, 19 I&N Dec.
377 (BIA 1986), as follows:

Absent egregious circumstances, a distinct and for-
mal admission made before, during, or even after a
proceeding by an attorney acting in his professional
capacity binds his client as a judicial admission.
Thus, when an admission is made as a tactical deci-
sion by an attorney in a deportation proceeding, the
admission is binding on his alien client and may be
relied upon as evidence of deportability.

Velasquez, 19 I&N Dec. at 382 (internal citations omitted).

Santiago cannot obtain relief here because he cannot show
egregious circumstances compelling the withdrawal of his
prior admissions. At the end of the day, several key facts
remain undisputed. When Santiago was in Mexico marrying
his wife, Santiago’s brother lived in Santiago’s house in Mex-
ico. After the wedding, Santiago, his wife, and his brother
traveled around Mexico, and they all took a plane together to
Juarez, Mexico, right next to the United States border. Santi-
ago bought the airline ticket for his wife, and his brother
bought one for himself. While Santiago, his wife, and brother
were all together in Juarez, Santiago bought a green card for
 SANTIAGO-RODRIGUEZ v. HOLDER 17167
his wife and his brother bought one for himself. Santiago used
a coyote to cross the border into El Paso, Texas, and then sep-
arately, his wife and brother traveled across the border using
one or more coyotes. The three of them met up together in El
Paso and went to a travel agency, where Santiago’s brother
and wife bought tickets to Los Angeles. They all then traveled
together to the El Paso airport, where they were apprehended.
At that time, Santiago was carrying false documents in his
bag for both his brother and his wife. These undisputed facts
add up to a series of group-oriented, carefully coordinated,
smuggling-related events. Taken together, they show that
Santiago aided his brother in illegally entering the United
States.

After discussing “everything” with Santiago (which pre-
sumably included all the facts set forth above), Attorney
Dominguez entered formal admissions on Santiago’s behalf.
These admissions prompted the government to agree not to
oppose Santiago’s Motion to Change Venue from El Paso,
Texas to Los Angeles, California, where Santiago resided,
and thus “the decision to admit the allegations and concede
removability made the motion to change venue more likely to
be granted.” Majority at 17156. As the IJ stated, and the
majority does not dispute, Santiago “received a benefit in
return for his change of venue to the detriment of the Govern-
ment by giving up the locale where there[sic] witnesses were
located.” See Majority at 17156. Having received a strategic
benefit from his admissions, and being unable to show that
the admissions were in fact false, Santiago is now unable to
show “egregious circumstances” sufficient to compel the
withdrawal of his admissions.

Here, the majority seeks to avoid this conclusion by focus-
ing on the theoretical possibility that Santiago’s testimony
might be construed to suggest that the admissions he entered
were not, in fact, true. The majority states that Santiago may
not be guilty of smuggling because he has protested that he
is “innocent” of the charges and that he did not “help” his
17168 SANTIAGO-RODRIGUEZ v. HOLDER
brother, only his wife. However, these are legal conclusions,
not factual ones. The facts that Santiago now admits reason-
ably support a finding that he aided and abetted his brother’s
entrance into this country, consistent with the admissions
made by his attorney. Even if a trier of fact were not com-
pelled to conclude that Santiago had failed to show egregious
circumstances, a trier of fact certainly could reasonably so con-
clude.1

The majority faults the BIA for not acknowledging the
legal significance of Altamirano v. Gonzales, 427 F.3d 586
(9th Cir. 2005). Majority at 17160-61. The majority misses
the point. The BIA cannot be faulted for failing to explicitly
acknowledge Altamirano, because Altamirano does not
change the outcome of this case. Altamirano held that riding
in a car carrying undocumented aliens was not in itself an “af-
firmative act” of aiding and abetting. See Altamirano, 427
F.3d at 592. However, Santiago did much more. He traveled
with his wife and brother, in a coordinated fashion, to multi-
ple different locations. He made arrangements and paid for his
wife to be smuggled into the United States, all the while
aligning these arrangements with his brother’s arrangements.
Further, Santiago carried false immigration documents for his
brother while in the El Paso airport. Altamirano does not hold
that what Santiago did — as he now admits — was not aiding
and abetting.

The majority’s reliance on Aguilar Gonzalez v. Mukasey,
534 F.3d 1204 (9th Cir. 2008), is also not persuasive because
that case does not support the conclusion that Santiago’s
1
This is particularly true because Attorney Vega was fully aware of the
admissions that Santiago had entered through Attorney Dominguez, and
Vega did not seek to withdraw them. The majority dismisses Vega’s con-
duct as a mere “omission” and asserts that it cannot constitute a separate
“distinct and formal admission” that binds Santiago. Assuming this is true,
Vega’s actions (or lack thereof) still can be considered by the BIA when
determining whether Santiago showed egregious circumstances sufficient
to relieve him from his previously-entered admissions.
 SANTIAGO-RODRIGUEZ v. HOLDER 17169
admitted actions do not constitute aiding and abetting. In
Aguilar Gonzalez, the petitioner reluctantly allowed her father
to use her son’s birth certificate to facilitate the smuggling of
an alien infant, and then accompanied him and the infant
across the United States-Mexico border. See id. at 1206-07. In
a split decision, we held that the petitioner’s acquiescence was
not an affirmative act. Id. at 1209. Santiago’s situation is
materially different from the petitioner in Aguilar Gonzalez.
Santiago did not merely acquiesce and accompany; he person-
ally arranged and paid for his wife’s illegal entry, coordinat-
ing it with his brother’s own illegal entry, through multiple
locations and over the span of multiple days. Santiago’s
involvement with the illegal smuggling was far greater than
the reluctant petitioner in Aguilar Gonzalez. Given the facts
of this case, the BIA reasonably determined that Santiago had
not shown egregious circumstances because he had not pre-
sented anything to compel the conclusion that his earlier fac-
tual admissions were, in fact, untrue.

As the majority acknowledges, the IJ’s decision, after hear-
ing evidence, to hold Santiago to his judicial admissions is
reviewed for abuse of discretion. Majority at 17158 (citing
Matter of Saleh, No. A096 437 096, 2008 WL 5025192 (BIA
Oct. 28, 2008) (per curiam)). Here, the BIA did not misinter-
pret or misapply the law (even accounting for Altamirano), it
did not make an unwarranted finding of fact, and it did not
otherwise abuse its discretion. We should not compel the BIA
to accept Santiago’s withdrawal of his duly-entered admis-
sions simply because a trier of fact might have been able to
determine that his testimony might be consistent with a deter-
mination that he is innocent of the smuggling charges. Here,
the facts that Santiago continues to admit reflect that he is
guilty of smuggling, and the formal admissions that he
entered secured him a procedural advantage. Santiago has not
shown “egregious circumstances.” I would deny the petition.