Perez-Mejia v. Holder

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BARBARITO PEREZ-MEJIA,  No. 07-70118
Petitioner, Agency No.
v. A073-845-546
ERIC H. HOLDER JR., Attorney ORDER
General, GRANTING
Respondent. LEAVE TO FILE
AMICUS BRIEF,
 AMENDING
OPINION AND
DENYING
PETITIONS FOR
REHEARING AND
REHEARING EN
BANC AND
AMENDED
 OPINION

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted
February 11, 2011—Pasadena, California

Filed April 21, 2011
Amended Opinion Filed November 23, 2011

20391
20392 PEREZ-MEJIA v. HOLDER
Before: A. Wallace Tashima and Raymond C. Fisher,
Circuit Judges, and Mark L. Wolf, District Judge.*

Opinion by Chief Judge Wolf

*The Honorable Mark L. Wolf, Chief United States District Judge for
the District of Massachusetts, sitting by designation.
20394 PEREZ-MEJIA v. HOLDER

COUNSEL

Raul Gomez and Araceli S. Perez-Brizo (argued), Law Office
of Raul Gomez, Los Angeles, California, for the petitioner.

James E. Grimes, United States Department of Justice, Civil
Division, Washington, D.C., for the respondent.

ORDER

The motion for leave to file an amicus brief in support of
the petitioner’s petition for rehearing, filed by Northwest
Immigrant Rights Project on August 1, 2011, is GRANTED.
 PEREZ-MEJIA v. HOLDER 20395
The opinion filed April 21, 2011, and appearing at 641 F.3d
1143 (9th Cir. 2011), is AMENDED. An amended opinion
will be filed concurrently with this order.

With this action, the panel has voted to deny the petition for
panel rehearing. Judge Fisher has voted to deny the petition
for rehearing en banc and Judges Tashima and Wolf have so
recommended.

The full court has been advised of the petition for rehearing
en banc and no judge has requested a vote on whether to
rehear the matter en banc. Fed. R. App. P. 35.

The petition for panel rehearing and the petition for rehear-
ing en banc are DENIED.

No further petitions for rehearing will be accepted.

OPINION

WOLF, Chief District Judge:

Petitioner Barbarito Perez-Mejia petitions for review of a
decision of the Board of Immigration Appeals (“BIA”) dis-
missing an appeal from an order of removal to Mexico. At the
outset of the removal proceedings before an Immigration
Judge (“IJ”), Perez-Mejia’s counsel admitted that Perez-Mejia
had been convicted in 1997 of possession of cocaine for sale
in violation of California Health and Safety Code section
11351 and conceded that he was removable as a result. On
that basis, the BIA found that Perez-Mejia was removable
under 8 U.S.C. § 1182(a)(2)(A)(i)(II) and that he was ineligi-
ble for a waiver of inadmissibility pursuant to 8 U.S.C.
§ 1182(h).

Perez-Mejia argues that the government failed to meet its
burden of proving that he was removable because the BIA and
20396 PEREZ-MEJIA v. HOLDER
the IJ were not permitted to rely on his counsel’s admissions.
He also asserts that a criminal docket from his 1997 convic-
tion that was introduced into evidence by the government was
insufficient to establish that he was removable because the
document did not indicate what substance he possessed for
sale. Additionally, Perez-Mejia contends that the government
is estopped from removing him on the basis of his 1997 con-
viction because it knew about the conviction when it granted
him Legal Permanent Resident (“LPR”) status in 2003.
Finally, he argues that he is eligible for a waiver of inadmissi-
bility because his 1997 conviction predated his admission as
an LPR in 2003.

For the reasons stated below, the petition is being denied.

I. FACTUAL AND PROCEDURAL BACKGROUND

At the time of the proceedings before the IJ, Perez-Mejia
was a thirty-six-year-old native and citizen of Mexico. He was
married to an United States citizen, with whom he had two
children. In 1997, Perez-Mejia was convicted of possessing a
narcotic for sale under California Health and Safety Code sec-
tion 11351. Sometime later, he applied for adjustment of sta-
tus to become an LPR. During his adjustment interview with
the Department of Homeland Security (“DHS”), Perez-Mejia
disclosed his 1997 conviction. Despite the fact that his con-
viction should have rendered Perez-Mejia inadmissible, he
was granted LPR status in 2003.

In 2004, Perez-Mejia departed the United States. When he
returned, Perez-Mejia applied for admission into the United
States as a returning LPR at the Los Angeles International
Airport. However, an immigration officer noted Perez-Mejia’s
1997 conviction and initiated removal proceedings against
him.

On December 10, 2004, Perez-Mejia was served with a
notice to appear (“NTA”). The fourth allegation in the NTA
 PEREZ-MEJIA v. HOLDER 20397
asserted that he was “convicted in the Superior Court of Los
Angeles, County of Los Angeles, State of California, for the
offense of, Possession for Sale of a Controlled Substance, to
wit: Cocaine, in violation of Section 11351 of the California
Health and Safety Code, a Felony.”1 The NTA charged that
Perez-Mejia was removable pursuant to 8 U.S.C.
§ 1182(a)(2)(A)(i)(II) as an alien who was convicted of a drug
offense involving a controlled substance listed in § 102 of the
Controlled Substances Act, 21 U.S.C. § 802.

Removal proceedings commenced before the IJ on January
12, 2005. However, the proceedings were continued after
Perez-Mejia’s counsel informed the IJ that he intended to col-
laterally attack Perez-Mejia’s state court conviction. When the
proceedings resumed on May 3, 2005, the government pro-
vided the IJ with a copy of the criminal docket from Perez-
Mejia’s 1997 criminal case. The docket indicated that Perez-
Mejia was convicted of “POSS NARC CNTRL SUBST FOR
SALE” in violation of California Health and Safety Code sec-
tion 11351, but did not identify the controlled substance.
Perez-Mejia stated that he was not ready to address the allega-
tions in the NTA and the proceedings were again continued
in order to allow Perez-Mejia to pursue his collateral attack on
his 1997 conviction. Perez-Mejia’s counsel told the IJ that he
was attacking the conviction on the basis that Perez-Mejia
possessed a controlled substance for personal use, rather than
for sale.

When the removal proceedings resumed on May 12, 2005,
Perez-Mejia was again represented by counsel.2 In a colloquy
1
The NTA contained three other allegations. It alleged that Perez-Mejia
was not a citizen or national of the United States; that Perez-Mejia was a
native and citizen of Mexico; and that Perez-Mejia applied for admission
into the United States at the Los Angeles International Airport on October
18, 2004, as a returning alien.
2
Perez-Mejia is represented by different counsel in the current proceed-
ings.
20398 PEREZ-MEJIA v. HOLDER
with the IJ, Perez-Mejia stated that his attorney was autho-
rized to speak on his behalf. The following exchange then
took place between the IJ and Perez-Mejia’s counsel:

The Court: Counsel, ready to go forward with plead-
ings?

Petitioner’s Counsel: Yes, Your Honor. . . .

The Court: Concede he was properly served with the
NTA?

Petitioner’s Counsel: Yes, Your Honor.

The Court: Have you explained the nature of these
proceedings to him?

Petitioner’s Counsel: Yes, I have.

The Court: Waive formal reading of the NTA?

Petitioner’s Counsel: Yes, Your Honor.

The Court: On behalf of your client, how do you
pleads [sic] to the four allegations and the one
charge of removability?

Petitioner’s Counsel: We concede the allegations,
Your Honor.

The Court: I’m sorry, do you admit allegations 1
through 4?

Petitioner’s Counsel: Yes, Your Honor.

The Court: And do you concede removability?

Petitioner’s Counsel: Yes, Your Honor.
 PEREZ-MEJIA v. HOLDER 20399
The admission to allegation four in the NTA was an admis-
sion that Perez-Mejia had been convicted in 1997 of possess-
ing cocaine with intent to sell it in violation of California law.

After these admissions and the concession of removability,
the IJ noted that he had been given a copy of the criminal
docket from Perez-Mejia’s 1997 criminal conviction. The IJ
asked Perez-Mejia’s counsel if “that’s why you conceded or
admitted . . . allegation 4” of the NTA, concerning his 1997
conviction. Perez-Mejia’s counsel responded affirmatively.
The IJ next inquired whether Perez-Mejia wanted to designate
a country to which to be deported and Perez-Mejia’s counsel
selected Mexico. The IJ then asked what relief Perez-Mejia
was seeking. Perez-Mejia’s counsel stated that he planned to
apply for a waiver of inadmissibility pursuant to 8 U.S.C.
§ 1182(h), but that he needed another continuance to complete
the collateral attack on Perez-Mejia’s state court conviction.
Another continuance was granted.

The final hearing before the IJ was held on July 8, 2005.
The IJ stated that Perez-Mejia had “admitted all allegations”
and “conceded removability.” Perez-Mejia’s counsel then
agreed that he “want[ed] to go to the relief phase of the case”
to address Perez-Mejia’s application for a waiver of inadmis-
sibility under 8 U.S.C. § 1182(h) on the ground that he was
married to an United States citizen. The government argued
that Perez-Mejia was not eligible for a § 1182(h) waiver
because, in the context of a drug conviction, such waivers are
available only where the conviction is for a “single offense of
simple possession of 30 grams or less of marijuana.” 8 U.S.C.
§ 1182(h). Perez-Mejia’s counsel stated that he had no argu-
ment in response. The IJ stated that he agreed with the gov-
ernment.

The IJ then considered whether the government was estop-
ped from removing Perez-Mejia on the basis of a conviction
of which it was aware when Perez-Mejia applied for LPR sta-
tus. The IJ expressed the view that Perez-Mejia had benefitted
20400 PEREZ-MEJIA v. HOLDER
from a mistake by DHS and, therefore, that the government
was not estopped from declaring Perez-Mejia to be inadmissi-
ble. Perez-Mejia’s counsel did not offer any evidence or argu-
ment to refute this conclusion.

Finally, the IJ considered Perez-Mejia’s application for vol-
untary departure. He concluded that Perez-Mejia was not eli-
gible for such relief because his conviction qualified as an
aggravated felony, as defined in 8 U.S.C. § 1101(a)(43)(B).

In his final decision, the IJ stated that Perez-Mejia “admit-
ted all allegations” and that “[b]ased on [Perez-Mejia’s]
admissions . . . removability has been established by clear,
convincing and unequivocal evidence.” The IJ also stated that
Perez-Mejia “conceded removability” and, therefore, remov-
ability was “not an issue in this case.” Id. The IJ then noted
that the government had submitted a criminal record that
showed Perez-Mejia had been convicted of possession for sale
of a narcotic substance in violation of California Health and
Safety Code section 11351.

When discussing Perez-Mejia’s application for a § 1182(h)
waiver, the IJ departed from the rationale on which he relied
at the July 8, 2011 hearing. Instead of concluding that Perez-
Mejia was ineligible for a waiver because he was not con-
victed of simple possession of less than thirty grams of mari-
juana, the IJ stated that Perez-Mejia’s ineligibility turned on
the fact that he was convicted of an aggravated felony. The
reason that the IJ altered the rationale for his decision is not
explained. The IJ also held that the government was not
estopped from relying on Perez-Mejia’s 1997 conviction
because Perez-Mejia benefitted from a mistake made by DHS
when it considered his application for LPR status, and was not
prejudiced by that error. Finally, the IJ concluded that Perez-
Mejia was not eligible for voluntary departure because he had
been convicted of an aggravated felony.

Perez-Mejia timely appealed to the BIA. In his brief, Perez-
Mejia argued that the government was estopped from relying
 PEREZ-MEJIA v. HOLDER 20401
on his 1997 conviction as a basis for removal and that the IJ
erred in finding Perez-Mejia ineligible for a § 1182(h) waiver.
Perez-Mejia argued, based on the text of the statute, that an
LPR is only ineligible for a § 1182(h) waiver if he commits
an aggravated felony after he is admitted.

The BIA adopted the IJ’s decision and added its own analy-
sis. It first found that Perez-Mejia was removable “in light of
the record of conviction and, more particularly, since [Perez-
Mejia] conceded the charge.” Next, the BIA rejected Perez-
Mejia’s estoppel argument “for several reasons.” The BIA
noted that Perez-Mejia could not meet his burden of establish-
ing affirmative misconduct beyond mere negligence, as
required by Watkins v. U.S. Army, 875 F.2d 699, 707 (9th Cir.
1989) (en banc). With regard to Perez-Mejia’s argument that
the IJ erred in finding him ineligible for a § 1182(h) waiver,
the BIA concluded that Perez-Mejia was ineligible for a
waiver because “his offense was a violation of a state con-
trolled substance law.”3

Following the BIA’s decision, Perez-Mejia timely filed this
petition for review.

II. DISCUSSION

Perez-Mejia presents three arguments on appeal. First, he
contends that the government did not meet its burden of prov-
ing that he was removable because an alien’s admissions
alone cannot establish removability and because the criminal
docket from his 1997 conviction was insufficient to establish
that he possessed for sale a controlled substance that renders
3
The BIA also concluded that Perez-Mejia was ineligible for an adjust-
ment of status in 2003 under 8 U.S.C. § 1229b(a)(3) because he had com-
mitted an aggravated felony. As Perez-Mejia notes in his brief, that
provision applies to cancellation of removal, for which Perez-Mejia never
applied. On appeal, Perez-Mejia does not claim that this error provides
any basis for relief.
20402 PEREZ-MEJIA v. HOLDER
him removable. Second, Perez-Mejia argues that the govern-
ment is estopped from removing him on the basis of a convic-
tion about which it knew when it granted him LPR status in
2003. Finally, Perez-Mejia asserts that he is eligible for a
§ 1182(h) waiver because his conviction occurred before he
was granted LPR status.

These are questions of law over which we have jurisdiction,
see 8 U.S.C. § 1252(a)(2)(D), and which we review de novo.
Hamazaspyan v. Holder, 590 F.3d 744, 747 (9th Cir. 2009);
see Shin v. Mukasey, 547 F.3d 1019, 1023-24 (9th Cir. 2008)
(jurisdiction to consider effect of alien’s admissions on
removability and merits of estoppel claim where alleged mis-
conduct by government employee occurred prior to decision
of Attorney General to initiate removal proceedings).4 Where,
as here, the BIA conducts its own review rather than adopting
the IJ’s decision, we review the BIA’s decision “except to the
extent that the IJ’s opinion is expressly adopted.” Hosseini v.
Gonzales, 471 F.3d 953, 957 (9th Cir. 2006) (internal quota-
tion marks omitted).
4
Perez-Mejia did not argue in his brief to the BIA, as he does now, that
the government failed to meet its burden of proving that he was remov-
able. Rather, he challenged the IJ’s decision on the grounds that the gov-
ernment was estopped from removing him and that he qualified for a
waiver of removability. Ordinarily, we are barred, “for lack of subject-
matter jurisdiction, from reaching the merits of a legal claim not presented
in administrative proceedings below.” Barron v. Ashcroft, 358 F.3d 674,
678 (9th Cir. 2004). However, the BIA addressed the removability issue
in its decision and concluded that Perez-Mejia was removable “for a con-
trolled substance violation, in light of the record of conviction and, more
particularly, since the [Perez-Mejia] conceded the charge.” “[O]ur prece-
dent is quite clear that claims addressed on the merits by the BIA are
exhausted.” Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 874 (9th Cir.
2008). “The BIA therefore had — and took advantage of — the opportu-
nity to consider” the merits of Perez-Mejia’s argument that the govern-
ment did not meet its burden of proof because reliance on his admissions
and concession of removability was improper. Socop-Gonzalez v. INS, 272
F.3d 1176, 1186 (9th Cir. 2001) (en banc). Therefore, we conclude that the
government has properly conceded that we have jurisdiction over this
claim.
 PEREZ-MEJIA v. HOLDER 20403
A. Removability

As indicated earlier, Perez-Mejia claims that the govern-
ment failed to meet its burden of proving that he was remov-
able. He argues that the statute under which he was convicted,
California Health and Safety Code section 11351, criminal-
izes possession for sale of a controlled substance, acetylfenta-
nyl, that is not a substance that triggers removal. As a result,
Perez-Mejia contends that his conviction requires the applica-
tion of the “modified categorical approach,” a procedure that
limits the information that can be considered to determine
whether the conduct that led to an alien’s conviction
amounted to a removable offense. See S-Yong v. Holder, 600
F.3d 1028, 1034 (9th Cir. 2010) (“We have previously found
that California law regulates the possession and sale of many
substances that are not regulated by the [federal Controlled
Substances Act]”); Ruiz-Vidal v. Gonzales, 473 F.3d 1072,
1077-78 (9th Cir. 2007) (to establish removability, the gov-
ernment must prove that the controlled substance at issue “is
not only listed under California law, but also contained in the
federal schedules of the [federal Controlled Substances
Act].”). When the modified categorical approach must be
employed, an alien’s factual admissions may not be used as
evidence to establish that he is removable, unless those admis-
sions are included in the “narrow, specified set of documents
that are part of the record of conviction,” such as a plea agree-
ment. See S-Yong, 600 F.3d at 1035-36; Tokatly v. Ashcroft,
371 F.3d 613, 623-24 (9th Cir. 2004); Huerta-Guevara v.
Ashcroft, 321 F.3d 883, 888 (9th Cir. 2003). Accordingly,
Perez-Mejia argues, his admissions to the factual allegations
in the NTA and his concession of removability were not suffi-
cient to establish his removability.

[1] However, the rule against relying on an alien’s admis-
sions does not apply universally. In Barragan-Lopez v.
Mukasey, we held that an alien’s admissions to “each factual
allegation” against him “constitute[d] clear, convincing, and
unequivocal evidence” that satisfied the government’s burden
20404 PEREZ-MEJIA v. HOLDER
of proof. 508 F.3d 899, 905 (9th Cir. 2007). Similarly, in
Shin, we held that “where the alien concedes removability,
‘the government’s burden in this regard is satisfied.’ ” 547
F.3d at 1024 (quoting Estrada v. INS, 775 F.2d 1018, 1020
(9th Cir. 1985)). The instant case presents an opportunity to
clarify when an alien’s admissions may be considered and
render him removable.

As explained below, admissions by an alien to facts alleged
in an NTA, and concessions of removability, made in the 8
C.F.R. § 1240.10(c) “pleading stage” of removal proceedings
may be relied on by an IJ. See Hoodho v. Holder, 558 F.3d
184, 190-92 (2d Cir. 2009); Roman v. Mukasey, 553 F.3d 184,
186-87 (2d Cir. 2009) (per curiam). However, if material
issues remain in dispute, or the IJ is not satisfied that the
alien’s admissions and concession are sufficient to resolve all
issues, the removal proceeding enters the 8 C.F.R.
§ 1240.10(d) “evidentiary stage.” At the § 1240.10(d) stage,
if the modified categorical approach is applicable, the evi-
dence that the IJ may consider in deciding whether the alien’s
prior conviction renders him removable is limited to certain
documents. See S-Yong, 600 F.3d at 1035; Tokatly, 371 F.3d
at 620-23. Under this modified categorical approach, any
admissions and other statements made by the alien during the
proceedings after the § 1240.10(c) pleading stage may not be
considered. See S-Yong, 600 F.3d at 1035; Tokatly, 371 F.3d
at 620-23; Huerta-Guevara, 321 F.3d at 887-88.

More specifically, removal proceedings are conducted pur-
suant to a regulation, 8 C.F.R. § 1240.10.5 After the IJ advises
an alien of certain rights and places him under oath, the alien
is required “to plead to the notice to appear by stating whether
he or she admits or denies the factual allegations and his or
5
Neither party cited the regulation in its initial briefing. It is, however,
evident that the IJ used it as the framework for Perez-Mejia’s removal pro-
ceeding, and the parties have addressed the regulation in their briefing on
Perez-Mejia’s petition for rehearing.
 PEREZ-MEJIA v. HOLDER 20405
her removability under the charges contained therein.” 8
C.F.R. § 1240.10(c).6 If the alien admits the allegations and
removability, “and the immigration judge is satisfied that no
issues of law or fact remain, the immigration judge may deter-
mine that removability as charged has been established by the
admissions of the respondent.” Id. If removability is not deter-
mined during this § 1240.10(c) pleading stage, the removal
hearing enters an evidentiary stage during which the IJ
receives admissible evidence on any issue not resolved to his
satisfaction at the pleading stage. Id. § 1240.10(d).7
6
In full, 8 C.F.R. § 1240.10(c) provides:
Pleading by respondent. The immigration judge shall require the
respondent 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. If the respon-
dent admits the factual allegations and admits his or her remov-
ability 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. The immigration judge shall
not accept an admission of removability from an unrepresented
respondent who is incompetent or under the age of 18 and is not
accompanied by an attorney or legal representative, a near rela-
tive, legal guardian, or friend; nor from an officer of an institu-
tion in which a respondent is an inmate or patient. When,
pursuant to this paragraph, the immigration judge does not accept
an admission of removability, he or she shall direct a hearing on
the issues.
7
In full, 8 C.F.R. § 1240.10(d) provides:
Issues of removability. When removability is not determined
under the provisions of paragraph (c) of this section, the immi-
gration judge shall request the assignment of an Service counsel,
and shall receive evidence as to any unresolved issues, except
that no further evidence need be received as to any facts admitted
during the pleading. The alien shall provide a court certified copy
of a Judicial Recommendation Against Deportation (JRAD) to
the immigration judge when such recommendation will be the
basis of denying any charge(s) brought by the Service in the pro-
ceedings against the alien. No JRAD is effective against a charge
of deportability under former section 241(a)(11) of the Act or if
the JRAD was granted on or after November 29, 1990.
20406 PEREZ-MEJIA v. HOLDER
The import of the regulation has been recognized by the
Second Circuit. See Hoodho, 558 F.3d at 190-92; Roman, 553
F.3d at 186-87. In essence, if the IJ is satisfied by the alien’s
admissions and concession of removability during the plead-
ing stage, the relevant issues are resolved and the proceedings
do not enter the evidentiary stage in which disputed questions
of removability are decided based on admissible evidence.

In Hoodho, counsel for an alien “conceded the truth of the
factual allegations [in the NTA and] conceded that he [was]
removable as charged.” 558 F.3d at 188 (some alterations
original). Despite these concessions, the alien argued on
appeal that he was not removable. Id. The BIA rejected the
alien’s appeal on the basis that he was bound by his attorney’s
concessions. Id. The Second Circuit agreed that the alien was
bound by his attorney’s statements where the record did not
“plainly contradict the concession.” Id. at 187. The court
noted that “the acceptance by an IJ of a plausible concession
of removability is an unremarkable feature of removal pro-
ceedings.” Id. It stated that “[a] petitioner cannot disavow that
concession because, in hindsight, it might have been prefera-
ble for him to have contested removability, rather than to have
conceded it.” Id. The Second Circuit held that admissions
made by an alien’s counsel during the pleading stage may be
accepted “so long as the IJ ‘is satisfied that no issues of law
or fact remain.’ ” Id. at 190 (quoting 8 C.F.R. § 1240.10(c)).8

The Second Circuit also rejected the alien’s argument that
the IJ was required to inspect the alien’s conviction record to
confirm that there was a factual basis for his admissions. Id.
at 191-92. In response to the alien’s argument that the IJ was
8
The Second Circuit explained that the IJ is not required to accept a
concession of removability if there is cause to believe that the concession
is erroneous. Hoodho, 558 F.3d at 192 n.7. However, it added that a con-
cession alone, absent any corroborating evidence, may be sufficient. Id.
With regard to the case before it, the court noted that alien’s concession
was “not plainly contradicted by record evidence.” Id. at 192.
 PEREZ-MEJIA v. HOLDER 20407
required to apply the modified categorical approach to his
prior conviction, the Second Circuit held:

The IJ did not have occasion to apply the modified
categorical approach to [the alien’s] conviction . . .
because [the alien] conceded removability . . . . In so
doing, [the alien] did not press the government to
develop the record in support of an inquiry along the
lines specified by the modified categorical approach,
nor did [the alien] request that the IJ make such a
determination. Indeed, his concession obviated the
need for such efforts on the part of the government
and the IJ.

Id. at 190 (citing Selimi v. INS, 312 F.3d 854, 860 (7th Cir.
2002)).

[2] In another case decided shortly before Hoodho, the
Second Circuit addressed facts comparable to those in this
case and held that the IJ was permitted to rely on counsel’s
admissions and concession made during the pleading stage. In
Roman, an alien with LPR status applied for admission to the
United States at an airport. See 553 F.3d at 185-86. Removal
proceedings were commenced against him because he had
been convicted of a New York State drug crime. Id. At his ini-
tial removal hearing, the alien’s counsel admitted the factual
allegations in the NTA and conceded that the alien was
removable. Id. at 186. He then obtained several continuances
to afford time to collaterally attack the alien’s state court con-
viction. Id. Considering the question of whether “the IJ was
prohibited from relying on [the alien’s] own admissions
(through his attorney) as the sole evidence establishing
removability based on a prior conviction,” the Second Circuit
held that the IJ’s actions “were explicitly authorized by 8
C.F.R. § 1240.10(c).” Id. at 186. The court went on to note
that the alien did “not allege that the admissions were inaccu-
rate or that the lawyer representing him was ineffective.” Id.
20408 PEREZ-MEJIA v. HOLDER
at 187. Therefore, the admissions made by the attorney were
deemed to be “binding on his alien client.” Id.

Although decisions in this Circuit do not reference
§ 1240.10, our jurisprudence concerning the effect of an
alien’s admissions in removal proceedings is consistent with
the regulation and its application by the Second Circuit. For
example, in Shin, an alien’s attorney admitted to the IJ that
the alien was not in possession of valid immigration docu-
ments and that she was, therefore, removable. See 547 F.3d
1019, 1023-24 (9th Cir. 2008). When she challenged her
removability on appeal, we held that “[o]n the basis of [the
alien’s] concession, the government’s burden is satisfied .” Id.
at 1024.

Similarly, in Barragan-Lopez, an alien admitted the factual
allegations contained in the NTA during the pleading stage,
including the allegation that he had been convicted of solicita-
tion to possess marijuana for sale, but challenged the legal
conclusion that the conviction rendered him removable. See
508 F.3d at 902, 905. Because removability was contested,
the proceedings entered the evidentiary stage. Id. at 902. The
IJ applied the categorical approach to the undisputed facts and
found that the statute under which the alien was convicted
was categorically a removable offense. Id. On appeal, the
alien argued that the government had not satisfied its burden
of establishing that he was removable. Id. at 905. We rejected
the claim, holding that the alien’s admission to “each factual
allegation considered by the IJ and the Board for removal”
was conclusive concerning the facts and found no error in the
application of the categorical approach to find that the alien
was removable. Id. Therefore, Barragan-Lopez is consistent
with § 1240.10(d), which provides, in part, that when a
removal case enters the evidentiary phase “no further evi-
dence need be received as to any facts admitted during the
pleading.” 8 C.F.R. § 1240.10(d).

As we have also held, in certain circumstances an alien’s
admissions may not be used to establish removability. See,
 PEREZ-MEJIA v. HOLDER 20409
e.g., S-Yong, 600 F.3d at 1035-36; Huerta-Guevara, 321 F.3d
at 887-88. These decisions, too, are consistent with § 1240.10.

In S-Yong, the NTA charged that the alien had been con-
victed of a drug crime under California Health and Safety
Code section 11379(a), but did not identify the controlled sub-
stance. 600 F.3d at 1031. The alien, appearing pro se, admit-
ted that the charge in the NTA was accurate. Id. The hearing
then entered the evidentiary stage and the IJ proceeded to ask
the alien about a “conviction record” that was not admitted as
evidence, which purportedly stated that the alien’s conviction
involved MDMA, or ecstacy. Id. at 1031-32. In response to
this further questioning, the alien admitted that his conviction
involved ecstacy. Id. Based solely on the alien’s statement
and the unidentified conviction document not made part of the
record, the IJ found that the alien had committed a controlled
substance offense within the meaning of the immigration laws
and, therefore, that the alien was removable. Id. at 1032,
1035.

In S-Yong, the alien’s pleading-stage admission to the
charge in the NTA did not establish all of the facts necessary
to determine whether he was removable because:

California law regulates the possession and sale of
many substances that are not regulated by the [fed-
eral Controlled Substances Act] and therefore . . .
Section 11379 is “categorically broader” than Sec-
tion 1227(a)(2)(B)(i) of the INA. This means that a
conviction under Section 11379 does not necessarily
entail a “controlled substance offense” under Section
1227(a)(2)(B)(i) of the immigration statute, and we
must look further to determine whether Yong’s con-
viction renders him removable.

Id. at 1034 (citations omitted). Accordingly, it was necessary
for the IJ to proceed to the § 1240.10(d) evidentiary stage to
resolve the issue of whether the alien had been convicted of
20410 PEREZ-MEJIA v. HOLDER
a removable offense. Under our jurisprudence, the IJ was
required to “apply a ‘modified’ categorical approach under
which [he could] look beyond the language of the statute to
a narrow, specified set of documents that are part of the
record of conviction.” Tokatly, 371 F.3d at 620; see also S-
Yong, 600 F.3d at 1035. This “is a narrow exception” to the
usual categorical approach. S-Yong, 600 F.3d at 1035. It does
not permit considering statements from an alien unless
included in the narrow set of documents that are part of the
record of conviction. Id. Because the only evidence in the
record establishing that the alien’s offense involved ecstasy
was the alien’s admission at the evidentiary stage, we
reversed the decision. Id. at 1035-36.

Similarly, in Huerta-Guevara, the NTA alleged that the
alien had been convicted of possession of a stolen vehicle
under Arizona law and charged that the crime was a remov-
able “theft offense.” 321 F.3d at 885-86. However, the Ari-
zona statute criminalized some conduct that would not render
the alien removable and the NTA did not specify under what
section of the statute the alien was convicted. Id. at 885-86,
887. Accordingly, when the alien admitted, during the plead-
ing stage of her removal proceedings, that “she understood the
charge [in the NTA] and was not denying it,” more evidence
was required to determine whether the alien’s conviction was
for a removable offense. Id. at 886. Thus, the proceedings
moved from the pleading stage to the evidentiary stage. The
government responded by introducing a conviction record that
the IJ accepted as conclusive of removability. However, on
appeal that record was found to be insufficient to establish
that the alien was convicted of a theft offense. See id. at 886-
87. The government attempted to salvage its case by asking
this court to consider statements in the alien’s brief on appeal
to the BIA. Id. at 888. The government argued that the alien’s
description of her conduct in the brief established her remov-
ability. Id. We disagreed, holding that even assuming, without
deciding, that statements in the alien’s brief could be consid-
 PEREZ-MEJIA v. HOLDER 20411
ered under the modified categorical approach, they were
insufficient in the particular case to prove removability. Id.

[3] In view of the foregoing, we conclude that § 1240.10
is consistent with our relevant jurisprudence and provides the
legal framework for deciding this case. In essence, if at the
§ 1240.10(c) pleading stage an alien, individually or through
counsel, makes admissions of fact or concedes removability,
and the IJ accepts them, no further evidence concerning the
issues of fact admitted or law conceded is necessary. If an
alien’s admissions or concession leave material issues in dis-
pute, or the IJ is not satisfied with an admission or conces-
sion, the proceeding moves to the § 1240.10(d) evidentiary
stage. If the issue concerning removability being addressed at
that stage requires applying the modified categorical
approach, the IJ may rely on facts admitted at the pleading
stage, but may not consider any further statements made by
the alien unless they are contained in the specific set of docu-
ments that are part of the record of conviction. See 8 C.F.R.
§ 1240.10(d) (“When removability is not determined under
the provisions of paragraph (c) of this section, the immigra-
tion judge . . . shall receive evidence as to any unresolved
issues, except that no further evidence need be received as to
any facts admitted during the pleading . . . .”); S-Yong, 600
F.3d at 1035 (when alien’s admissions in pleading stage are
not sufficient to establish removability and modified categori-
cal approach must be applied, alien’s statements to the immi-
gration judge after the pleading stage regarding the nature of
his criminal conduct may not be considered).

[4] In view of the foregoing, the BIA properly concluded
that Perez-Mejia was removable. In contrast to the NTA in S-
Yong, the NTA here expressly stated that Perez-Mejia was
convicted of possessing cocaine for sale. It is undisputed that
cocaine is a prohibited drug under the Controlled Substances
Act. See 21 U.S.C. § 802(17)(D). It is also not disputed that
Perez-Mejia’s counsel was authorized to speak for him. When
asked how Perez-Mejia wished to plead to the four allega-
20412 PEREZ-MEJIA v. HOLDER
tions, which included the charge that he had been convicted
of possessing cocaine for sale, his counsel admitted the alle-
gations. The IJ was permitted to rely on this admission. See
Barragan-Lopez, 508 F.3d at 905; Shin, 547 F.3d at 1024; see
also Hoodho, 558 F.3d at 190-91; Roman, 553 F.3d at 185-86.
The admission relieved the government of the obligation to
present any evidence on the factual question of the nature of
the drug offense. Hoodho, 558 F.3d at 191.

[5] Perez-Mejia’s counsel also conceded that the admitted
facts rendered Perez-Mejia removable. This concession was
correct as a matter of law. See 8 U.S.C. § 1182(a)(2)(A)(i)(II)
(inadmissibility resulting from conviction of “controlled sub-
stance” offense). As we have held, “where the alien concedes
removability, ‘the government’s burden in this regard is satis-
fied.’ ” Shin, 547 F.3d at 1024 (quoting Estrada, 775 F.2d at
1020).

The IJ’s question about whether Perez-Mejia was admitting
the allegation that he was convicted of possessing cocaine
because of the record of conviction that the IJ had received
does not indicate that the IJ was dissatisfied with the admis-
sion to the factual allegations or the concession of removabil-
ity and moving from the § 1240.10(c) pleading stage to the
§ 1240.10(d) evidentiary stage. Rather, upon receiving an
affirmative answer to his inquiry, the IJ admitted the record
of conviction without further discussion and promptly asked
whether Perez-Mejia wanted to designate a country to which
to be deported. This is an issue addressed in 8 C.F.R.
§ 1240.10(f).9 This order of inquiry confirms that the IJ was
9
In full, 8 C.F.R. § 1240.10(f) provides:
Country of removal. With respect to an arriving alien covered by
section 241(b)(1) of the Act, the country, or countries in the alter-
native, to which the alien may be removed will be determined
pursuant to section 241(b)(1) of the Act. In any other case, the
immigration judge shall notify the respondent that if he or she is
finally ordered removed, the country of removal will in the first
 PEREZ-MEJIA v. HOLDER 20413
satisfied that Perez-Mejia’s admissions and concessions obvi-
ated the need to take evidence pursuant to § 1240.10(d).10

If the matter had proceeded to the § 1240.10(d) evidentiary
stage, the record of conviction, which only stated that Perez-
Mejia had been convicted under California Health & Safety
Code section 11351 for possessing a controlled substance for
sale, would not alone have been sufficient to establish that
Perez-Mejia was removable. See Ruiz-Vidal, 473 F.3d at
1077-78. If a § 1240.10(d) inquiry were being made, the mod-
ified categorical approach would have been applicable and
any further statements Perez-Mejia might have made during
the evidentiary stage could not be considered because they
would not have been included in the narrow set of documents
that can be considered under the modified categorical
approach. See S-Yong, 600 F.3d at 1035-36; Tokatly, 371 F.3d
at 623.

However, no such additional statements were made or con-

instance be the country designated by the respondent, except as
otherwise provided under section 241(b)(2) of the Act, and shall
afford him or her an opportunity then and there to make such des-
ignation. The immigration judge shall also identify for the record
a country, or countries in the alternative, to which the alien’s
removal may be made pursuant to section 241(b)(2) of the Act if
the country of the alien’s designation will not accept him or her
into its territory, or fails to furnish timely notice of acceptance,
or if the alien declines to designate a country. In considering
alternative countries of removal, acceptance or the existence of a
functioning government is not required with respect to an alterna-
tive country described in section 241(b)(1)(C)(i)-(iii) of the Act
or a removal country described in section 241(b)(2)(E)(i)-(iv) of
the Act. See 8 CFR 241.15.
10
Perez-Mejia and amicus argue that removal proceedings are not
always neatly divided into pleading and evidentiary stages. In this case,
however, it is clear that Perez-Mejia’s admission to the facts alleged in the
notice to appear and his concession of removability were pleadings. Sec-
tion 1240.10(c) therefore applies.
20414 PEREZ-MEJIA v. HOLDER
sidered in this case. After making the relevant admissions and
concessions, and designating Mexico as the country to which
Perez-Mejia should be deported, his counsel did not discuss,
let alone dispute, the adequacy of the proof of removability.
Rather, he requested a § 1182(h) waiver of removability and
voluntary departure, both of which were rejected.

[6] In essence, it appears that Perez-Mejia’s counsel
decided that Perez-Mejia could not, even under the modified
categorical approach, successfully contest the fact that Perez-
Mejia had been convicted of possessing cocaine for sale and,
therefore, was removable. Instead, he decided to seek relief
from removal. As the Seventh Circuit has written,
“[c]oncessions of this sort, often motivated by tactical and
pragmatic considerations, are routinely made in immigration
proceedings.” Selimi, 312 F.3d at 860; see also Roman, 553
F.3d at 187 (admission made as tactical decision by counsel
is binding). As the Seventh Circuit concluded in the context
of excludability, having formally admitted that he was remov-
able, Perez-Mejia cannot now contend that the government’s
proof of his removability was insufficient. See Selimi, 312
F.3d at 860; see also Hoodho, 558 F.3d at 190-91; Roman,
553 F.3d at 185-86; Barragan-Lopez, 508 F.3d at 905; Shin,
547 F.3d at 1024.

In his petition for rehearing, Perez-Mejia contends that the
IJ improperly accepted his admission to the factual allegations
in the notice to appear because those allegations were “plainly
contradicted by record evidence.” Hoodho, 558 F.3d at 192.
He argues that the IJ had reason to believe that his admission
was in error because the criminal docket, in contrast to the
notice to appear, did not identify the controlled substance
involved in his prior drug conviction. We disagree that Perez-
Mejia’s admissions were contradicted by the record. The
docket was silent on the identity of the controlled substance
involved in the offense, so it did not contradict the notice to
appear. Therefore, Perez-Mejia has given us no reason to
 PEREZ-MEJIA v. HOLDER 20415
believe that his conviction involved any substance other than
cocaine.

The petition for rehearing also argues that, regardless of
any admissions and concessions offered by an alien at the
pleading stage of removal proceedings, the government must
always present clear and convincing evidence of the alien’s
removability independent of the alien’s admissions. See 8
U.S.C. § 1229a(c)(3)(A) (providing that the government “has
the burden of establishing by clear and convincing evidence
that . . . the alien is deportable”); Huerta-Guevara, 321 F.3d
at 886. Under § 1240.10(c), however, “[i]f the respondent
admits the factual allegations and admits his or her removabil-
ity 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 estab-
lished by the admissions of the respondent.” 8 C.F.R.
§ 1240.10(c) (emphasis added). The alien’s admissions
relieve the government of the burden of producing evidence:
“no further evidence need be received as to any facts admitted
during the pleading.” Id. § 1240.10(d). The government’s bur-
den to present clear and convincing evidence of deportability
accordingly applies only to issues that are not resolved at the
pleading stage.

The petition for rehearing further argues that we should set
aside the IJ’s determination that Perez-Mejia was convicted of
a controlled substance offense because that determination was
legally erroneous. Perez-Mejia is correct that we may set
aside a determination by the IJ that rests on an alien’s errone-
ous concession, at least in some circumstances. See
Mandujano-Real v. Mukasey, 526 F.3d 585, 588 (9th Cir.
2008) (“The Government does not argue, nor could it, that the
IJ’s reliance on [the alien’s] concession would suffice as a
basis for removal if the BIA or the court were to determine
that his conviction does not, as a matter of law, constitute an
aggravated felony.”); Garcia-Lopez v. Ashcroft, 334 F.3d 840,
844 n.4 (9th Cir. 2003) (holding that an alien was not bound
20416 PEREZ-MEJIA v. HOLDER
by his characterization, in an application for suspension of
deportation, of his prior conviction as a “felony,” because the
characterization was “patently inaccurate,” and, more impor-
tantly, because an alien’s “belief about the nature of his
offense is irrelevant to the purely legal question of how the
offense was categorized or what the maximum penalty was”);
Huerta-Guevara, 321 F.3d at 886 (“[W]e may consider an
issue regardless of waiver if the issue is purely one of law and
the opposing party will suffer no prejudice.”). In this case,
however, Perez-Mejia has offered no reason to believe that
either his concessions or the IJ’s determinations were errone-
ous. We thus have no reason to set them aside.11

B. Estoppel

Perez-Mejia also argues that the government is estopped
from using his 1997 conviction as a basis for removal because
DHS knew about the conviction when it granted him LPR sta-
tus in 2003. This contention is incorrect.

[7] “It is well settled . . . that the government may not be
estopped on the same terms as a private litigant.” Watkins,
875 F.2d at 706. “A party seeking to raise estoppel against the
government must establish affirmative misconduct going
11
Northwest Immigrant Rights Project argues in its amicus brief that an
alien should not be bound by a pleading-stage “concession made in plain
error, which would inevitably result in injustice as the person would be
erroneously found deportable or precluded from seeking relief from
removal.” We have no disagreement with that assertion as a general mat-
ter, though we also have no occasion in this case to define with precision
the circumstances in which we may review factual and legal questions that
have been conceded by the alien at the pleading stage of removal proceed-
ings, whether under Mandujano-Real, Huerta-Guevara or any of our other
decisions. The facts in this case also do not implicate concerns raised by
amicus that removal proceedings sometimes are conducted in large group
sessions and that aliens sometimes appear pro se. In this case, Perez-
Mejia, who was represented by counsel, has presented nothing to suggest
that the IJ’s determination of removability was erroneous, let alone plainly
erroneous, so we have no occasion to explore those questions in detail.
 PEREZ-MEJIA v. HOLDER 20417
beyond mere negligence; even then, estoppel will only apply
where the government’s wrongful act will cause a serious
injustice, and the public’s interest will not suffer undue dam-
age by imposition of the liability.” Morgan v. Gonzales, 495
F.3d 1084, 1092 (9th Cir. 2007) (quoting Watkins, 875 F.2d
at 707). Moreover, a party cannot obtain estoppel against the
government if he did not lose any rights to which he was enti-
tled. Id.

“There is no single test for detecting the presence of affir-
mative misconduct; each case must be decided on its own par-
ticular facts and circumstances. Affirmative misconduct does
require an affirmative misrepresentation or affirmative con-
cealment of a material fact by the government, although it
does not require that the government intend to mislead a
party.” Watkins, 875 F.2d at 707 (citations omitted).

If a litigant survives this initial inquiry, the court considers
four elements to determine if the government is estopped:

“(1) the party to be estopped must know the facts;
(2) he must intend that his conduct shall be acted on
or must so act that the party asserting the estoppel
has a right to believe it is so intended; (3) the latter
must be ignorant of the true facts; and (4) he must
rely on the former’s conduct to his injury.”

Morgan, 495 F.3d at 1092 (quoting Watkins, 875 F.2d at 709).

[8] Both the IJ and the BIA characterized the decision by
DHS to grant Perez-Mejia LPR status in 2003 as a “mistake.”
This was not an erroneous conclusion. It was Perez-Mejia’s
burden to prove that the decision to grant him LPR status was
affirmative misconduct by DHS. See id. Perez-Mejia offered
no evidence of such misconduct, but rather relied on the fact
that he obtained LPR status when he should have been denied
it. He now points to nothing in the record that suggests that
DHS engaged in any “affirmative misrepresentation or affir-
20418 PEREZ-MEJIA v. HOLDER
mative concealment.” Watkins, 875 F.2d at 707. “[T]he negli-
gent provision of misinformation” by immigration officials
does not constitute affirmative misconduct. Sulit v. Schiltgen,
213 F.3d 449, 454 (9th Cir. 2000). The evidence suggests no
more than such negligence in this case.

Moreover, Perez-Mejia “lost no rights to which [he] was
entitled under the immigration laws.” Santiago v. INS, 526
F.2d 488, 493 (9th Cir. 1975) (en banc). Perez-Mejia con-
cedes that he was ineligible for LPR status when he applied
for it and does not contend that obtaining it deprived him of
any rights. See id. at 491-93 (failure to inform aliens that their
entry into United States was unlawful did not deprive them of
opportunity to depart and attempt to return lawfully).

[9] In essence, the evidence only indicates that the govern-
ment was negligent in improperly granting Perez-Mejia LPR
status. Perez-Mejia benefitted from that error. The govern-
ment was not estopped from correcting the mistake when it
was discovered.12

C. Eligibility for Waiver of Admissibility

Finally, Perez-Mejia argues that the IJ erred in denying his
application for a waiver of inadmissibility under 8 U.S.C.
§ 1182(h) because he was convicted of an aggravated felony.13
12
Perez-Mejia asserts that the record is limited on whether DHS
engaged in affirmative misconduct because he was not allowed to pursue
his estoppel argument before the IJ. This contention is incorrect. The
record demonstrates that the IJ expressed his tentative ruling and invited
Perez-Mejia to argue estoppel. Perez-Mejia neither proposed to offer any
evidence nor made any further argument regarding estoppel.
13
U.S.C. § 1182(h) provides in pertinent part:
The Attorney General may, in his discretion, waive the applica-
tion of . . . subparagraph (A)(i)(II) of such subsection insofar as
it relates to a single offense of simple possession of 30 grams or
less of marijuana if—
 PEREZ-MEJIA v. HOLDER 20419
Quoting the statute, he contends that a conviction for an
aggravated felony only renders an alien admitted as an LPR
ineligible for a § 1182(h) waiver if the conviction occurred
“since the date of such admission.” 8 U.S.C. § 1182(h).
Therefore, Perez-Mejia asserts that his 1997 conviction does
not render him ineligible for a waiver because it predated his
admission as an LPR.

However, the BIA found that he was ineligible for a
§ 1182(h) waiver on a different basis. The BIA found that he
was ineligible for a waiver because Perez-Mejia’s “offense
was a violation of a state controlled substance law.” We
review the BIA’s decision where it differs from that of the IJ.
See Hosseini, 471 F.3d at 957.

[10] Where, as here, an alien is charged with being remov-
able on the basis of a conviction for a controlled substance
offense, 8 U.S.C. 1182(a)(2)(A)(i)(II), a waiver is available
only when the alien was convicted of a “single offense of sim-

(1) . . .
(B) in the case of an immigrant who is the spouse, parent, son,
or daughter of a citizen of the United States or an alien lawfully
admitted for permanent residence if it is established to the satis-
faction of the Attorney General that the alien’s denial of admis-
sion would result in extreme hardship to the United States citizen
or lawfully resident spouse, parent, son, or daughter of such alien
....
No waiver shall be granted under this subsection in the case of
an alien who has previously been admitted to the United States
as an alien lawfully admitted for permanent residence if either
since the date of such admission the alien has been convicted of
an aggravated felony or the alien has not lawfully resided contin-
uously in the United States for a period of not less than 7 years
immediately preceding the date of initiation of proceedings to
remove the alien from the United States. No court shall have
jurisdiction to review a decision of the Attorney General to grant
or deny a waiver under this subsection.
20420 PEREZ-MEJIA v. HOLDER
ple possession of 30 grams or less of marijuana.” 8 U.S.C.
§ 1182(h); see Sum v. Holder, 602 F.3d 1092, 1094 (9th Cir.
2010). Here, Perez-Mejia admitted that he was convicted of
possession of cocaine for sale, thus rendering him ineligible
for the waiver, regardless of when he was convicted of the
crime. See Sum, 602 F.3d at 1094. Although the IJ did not rely
on this rationale in his final decision, the BIA correctly based
its decision on Perez-Mejia’s conviction for a controlled sub-
stance offense. As we are reviewing the BIA’s decision on
this issue, and it is correct, Perez-Mejia’s claim is unmeritor-
ious.

III. CONCLUSION

By admitting at the pleading stage that he was convicted of
possessing cocaine for sale and conceding that he was, there-
fore, removable, Perez-Mejia relieved the government of its
burden of offering further evidence to prove that he was
removable. The government is not estopped by its error in
granting Perez-Mejia LPR status from correcting its mistake
and ordering his removal. Perez-Mejia’s admission to the
cocaine offense made him ineligible for a waiver of remov-
ability under § 1182(h). Therefore, the petition for review is
unmeritorious.

DENIED.