Hoodho v. Holder

07-3432-ag
Hoodho v. Holder

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

August Term, 2008

(Argued: January 16, 2009 Decided: February 6, 2009)

Docket No. 07-3432-ag

MAHIRAM HOODHO ,

Petitioner,

v.

ERIC H. HOLDER, JR .,

Respondent.*

Before: CABRANES and LIVINGSTON , Circuit Judges, and EATON , Judge.**

Petition for review of a decision of the Board of Immigration Appeals (“BIA”) affirming a

removal order entered after counsel for petitioner conceded removability before an Immigration Judge

(“IJ”). We hold that an IJ is authorized to accept a concession of removability where, as here, it is not

plainly contradicted by the record evidence. The acceptance by an IJ of a plausible concession of

removability is an unremarkable feature of removal proceedings and therefore cannot constitute

“egregious circumstances” that would free a represented party from the concessions of his attorney.

Petitioner is therefore bound by his attorney’s concession.

Denied.

*
The Clerk of Court is directed to amend the official caption in this case to conform to the listing of the parties
above. Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Eric H. Holder, Jr. is automatically
substituted for former Attorney General Michael B. Mukasey.

**
The Honorable Richard K. Eaton, Judge, United States Court of International Trade, sitting by designation.
1
 DOUGLAS F. BRODER (Brian D. Koosed, on the brief), K&L
Gates, New York, NY, for Petitioner Mahiram Hoodho.

R. ALEXANDER GORING , Trial Attorney (Gregory G. Katsas,
Assistant Attorney General, Michelle G. Latour,
Assistant Director, on the brief), Office of Immigration
Litigation, Civil Division, Department of Justice,
Washington, DC, for Respondent Eric H. Holder, Jr.

JOSÉ A. CABRANES, Circuit Judge:

Mahiram Hoodho petitions for review of a final order of removal entered by Immigration Judge

(“IJ”) Patricia A. Rohan on October 5, 2006. Hoodho urges the vacatur of that order on the grounds

that (1) he is not removable, (2) his attorney’s concession of removability was erroneous and should not

have been accepted by the IJ, and (3) the “egregious circumstances” of his case should exempt him

from the general rule that a litigant is bound by the representations of his attorney.

We see no merit in these arguments. Where, as here, the record evidence does not plainly contradict

the concession of an attorney, we see no basis to second guess the decision of an IJ to accept that

concession and conduct removal proceedings accordingly. Removal proceedings conducted on such a

basis do not amount to “egregious circumstances” that would free a litigant from the representations of

his attorney. To the contrary, the acceptance by an IJ of a plausible concession of removability is an

unremarkable feature of removal proceedings. A petitioner cannot disavow that concession because, in

hindsight, it might have been preferable for him to have contested removability, rather than to have

conceded it. Because Hoodho is bound by his attorney’s concession of removability, his petition for

review is denied.

BACKGROUND

Hoodho, a native and citizen of Guyana, was admitted into the United States on September 1,

1983 pursuant to a non-immigrant visitor visa. He overstayed his visa and, in 1986, married a United

States citizen. Sponsored by his wife, Hoodho became a lawful permanent resident on June 8, 1990.

2
Hoodho’s marriage has produced two children, both of whom are citizens of the United States.

Since the late 1980s, Hoodho has been involved in several domestic altercations, often requiring

the intervention of law enforcement officers and, on more than one occasion, resulting in Hoodho’s

arrest, conviction, and incarceration. At some point in the 1990s, Hoodho’s wife obtained an order of

protection against him, and Hoodho was arrested for violating that order in 1998. In 2002, Hoodho

was arrested for reckless assault of a child, endangering the welfare of a child, and criminal contempt,

apparently for violating the restraining order; he was convicted of criminal contempt and sentenced to a

sixty-day term of imprisonment. Another conviction for criminal contempt followed in 2003, the

sentence for which was four months’ imprisonment.

On March 27, 2003, the Criminal Court of the City of New York, Queens County, issued a

protective order that enjoined Hoodho from going near his wife. That order was served on Hoodho

while he was incarcerated. Three months later, on July 3, 2004, Hoodho was arrested for violating the

March 27, 2003 order, and he was charged with criminal contempt in the second degree and

harassment in the second degree. He pleaded guilty to the charge of criminal contempt and was

sentenced to six months’ imprisonment on September 7, 2004. At that time, another protective order

was entered forbidding Hoodho to come “within 100 yards” of his wife. J.A. 241. Hoodho violated

that order on January 21, 2006, pleaded guilty to criminal contempt, and was sentenced to a ninety-day

term of imprisonment on March 21, 2006. Another protective order was issued at that time.

In late 2004, the Immigration and Naturalization Service (“INS”) commenced removal

proceedings against Hoodho arising from his July 3, 2004 violation of the March 27, 2003 protective

order. In a Notice to Appear dated November 2, 2004, the INS alleged that Hoodho had “engaged in

conduct that violated a portion of [a protective order] that involved protection against credible threats

of violence, repeated harassment, or bodily injury to the person or persons for whom the protection

3
order was issued.” Id. at 420. This conduct, according to the INS, caused Hoodho to be removable

pursuant to Section 237(a)(2)(E)(ii) of the Immigration and Nationality Act (“INA”), 8 U.S.C.

§ 1227(a)(2)(E)(ii).

On January 4, 2005, Hoodho appeared, with counsel, before the immigration court in Louisiana

and, through counsel, conceded removability. The Department of Homeland Security (“DHS”)1

moved into evidence, without objection, a certified copy of Hoodho’s conviction for criminal contempt

in violation of Section 215.50 of the New York Penal Law and a copy of the text of that statute. J.A.

88. Based on the concession of Hoodho and the submissions of the DHS, the IJ found that

removability had been established by clear and convincing evidence. Id. at 89. Hoodho then stated,

again through counsel, that he would seek cancellation of removal, a form of discretionary relief from

removal. See Medina v. Gonzales, 404 F.3d 628, 634, n.4 (2d Cir. 2005).

Hoodho’s counsel filed an application for cancellation of removal on January 7, 2005. After

Hoodho’s removal proceeding was transferred from Louisiana to New York and he was granted several

continuances so that he could obtain new local counsel, an IJ in New York held hearings on Hoodho’s

application on April 11, July 17, and October 5, 2006. At the conclusion of these hearings, the IJ

denied Hoodho’s application. In her oral decision, the IJ stated that “[Hoodho,] through counsel,

conceded the truth of the factual allegations [in the Notice to Appear and] conceded that he is

removable as charged.” J.A. 59. The IJ explained that she would not grant him discretionary relief

because Hoodho was “unable or unwilling to control his behavior” and “should [not] be permitted to

remain in the United States to continue to create these difficulties for his wife[,] his children and

himself.” Id. at 59, 67-68.

1
“Pursuant to the Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135, the INS was abolished
and its functions reassigned to subdivisions of the Department of Homeland Security.” Brito v. Mukasey, 521 F.3d 160,
162 n.2 (2d Cir. 2008).
4
 Hoodho appealed the IJ’s decision, but the Board of Immigration Appeals (“BIA”) dismissed

the appeal on July 23, 2007. In re Hoodho, No. A29 780 444 (B.I.A. July 23, 2007). The BIA rejected

Hoodho’s challenge to the determination that he was removable because “[Hoodho] is bound by th[e]

concession” of removability made by his attorney. Id. at 1 (citing 8 C.F.R. § 1240.10; In re Velasquez, 19

I. & N. Dec. 377 (B.I.A. 1986)). With respect to the IJ’s denial of discretionary relief, the BIA “agree[d]

that [Hoodho’s] positive factors are insufficient to outweigh his adverse factors, particularly his

demonstrated disregard for the laws of the United States.” Id. at 2. Hoodho moved for

reconsideration, but the BIA denied that motion on September 28, 2007.

Hoodho filed a timely petition for review in this Court.

DISCUSSION

In his petition to this Court, Hoodho argues that (1) he is not removable, (2) his attorney’s

concession of removability was erroneous and should not have been accepted by the IJ, and (3) the

“egregious circumstances” of his case should exempt him from the general rule that a litigant is bound

by the representations of his attorney. We consider each of these arguments in turn and conclude that

none of them has merit.

A. The Record Does Not Show That Hoodho Is Not Removable under INA
§ 237(a)(2)(E)(ii).

Pursuant to INA § 237(a)(2)(E)(ii),

[a]ny alien who at any time after admission is enjoined under a protection order issued by a
court and whom the court determines has engaged in conduct that violates the portion of a
protection order that involves protection against credible threats of violence, repeated
harassment, or bodily injury to the person or persons for whom the protection order was issued
is deportable.

8 U.S.C. § 1227(a)(2)(E)(ii). Hoodho was convicted of violating section 215.50(3) of the New York

Penal Law, which prohibits “intentional disobedience or resistance to the lawful process or other

mandate of a court except in cases involving or growing out of [certain] labor disputes.”

5
 Hoodho’s argument before this Court assumes that either the “categorical approach” or the

“modified categorical approach,” which were first discussed by the Supreme Court in Taylor v. United

States, 495 U.S. 575 (1990), govern the application of INA § 237(a)(2)(E)(ii) to his prior conviction

under section 215.50(3).2 Under the “categorical approach,” we do not evaluate “the singular

circumstances” of a petitioner’s prior conviction; instead, we consider whether “the minimum criminal

conduct necessary to sustain a conviction” under the statute of prior conviction satisfies the definition

of the applicable INA provision. See James v. Mukasey, 522 F.3d 250, 254 (2d Cir. 2008) (internal

quotation marks omitted). However, if a violation of a criminal statute can arise from “diverse classes

of criminal acts[,] some of which would categorically be grounds for removal and others of which

would not,” we must apply the so-called “modified categorical approach” to determine whether a

conviction renders the offender removable under the INA. Id. (internal quotation marks omitted).

When applying the “modified categorical approach,” an “agency may . . . refer to the record of

conviction for the limited purpose of determining whether the alien’s conviction was under the branch

of the statute that permits removal.” Id. (internal quotation marks and alteration omitted).

Here Hoodho contends that we must apply the “modified categorical approach” because, he

avers, “not every conviction under [New York] Penal Law § 215.50(3) satisfies the criteria for

removability under INA § 237(a)(2)(E)(ii).”3 Petitioner’s Br. at 12. According to Hoodho, he is not

removable because the record shows neither that he acted in a violent or threatening manner nor that

2
Not every removability provision requires application of the “categorical approach” or the “modified
categorical approach.” See James v. Mukasey, 522 F.3d 250, 255 n.5 (2d Cir. 2008)(noting that a removability provision
may “‘invite[ ] inquiry into the facts underlying the [prior] conviction’” (quoting Singh v. Ashcroft, 383 F.3d 144, 161 (3d
Cir. 2004))). We intimate no view on whether, or to what extent, the Supreme Court’s reasoning in Taylor or Shepard v.
United States, 544 U.S. 13 (2005), applies to INA § 237(a)(2)(E)(ii).

3
We note that it is an open question whether a statute is divisible and therefore susceptible to the modified
categorical approach when it encompasses both removable and non-removable offenses, but does not describe the
removable offenses only in distinct subsections or elements of a disjunctive list. See James v. Mukasey, 522 F.3d 250,
255-56 (2d Cir. 2008). As Hoodho concedes that the modified categorical approach is applicable to Section 215.50(3) of
the New York Penal Law, however, we need not decide that issue here.
6
his violation of the March 27, 2003 protective order involved violation of the portion of that order

specifically protecting against a credible threat of violence, repeated harassment, or bodily injury as

required by the immigration statute. Petitioner’s Br. 13.

The IJ did not have occasion to apply the modified categorical approach to Hoodho’s

conviction for violating Section 215.50(3) of the New York Penal Law because Hoodho conceded

removability under INA § 237(a)(2)(E)(ii). In so doing, Hoodho 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 Hoodho 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. See Selimi v. INS, 312 F.3d

854, 860 (7th Cir. 2002) (“[T]he concession that [petitioner’s] attorney made was in the nature of a

judicial admission, and such an admission has the effect of withdrawing an issue from controversy.

Having formally conceded that he was excludable, [petitioner] may not now contend that the INS’s

proof of excludability was insufficient.” (citation omitted)).

Even so, the record does not show, as Hoodho now contends, that he was convicted under

Section 215.50(3) for “violating the ‘no-contact’ portion of the March 27, 2003 protective order, not

the section prohibiting threatening or harassing conduct,” and is therefore not subject to removal under

INA § 237(a)(2)(E)(ii).4 Petitioner’s Br. 13. According to the charging document, Hoodho’s wife was

under the protection of an order “which states, among other things, that the defendant, Mahiram Hoodho,

is to stay away from the home, school, place of business, and place of employment of the complainant,

Indrowtie Hoodho.” J.A. 239 (emphasis added). Hoodho concedes that this protective order also

contained a provision ordering him not to “harass[ ] or otherwise threaten[ ]” his wife or children.

Petitioner’s Br. 4. In addition, the criminal complaint states that Hoodho rang his wife’s doorbell and

4
We intimate no view on whether Hoodho’s construction of the statute is correct.
7
knocked heavily on her front door in the early morning hours of July 3, 2004. J.A. 239. It also alleges

that Hoodho continued to knock at his wife’s door for a period of time while “scream[ing] out her

nickname,” thereby causing his wife “annoyance and alarm.” Id. at 239-40. This conduct could have

been construed by the IJ as violating a provision of the March 27, 2003 protective order protecting

against “repeated harassment.” INA § 237(a)(2)(E)(ii). In addition, Hoodho’s long history of being

subject to protective orders—and equally long history of violating those orders—only underscores the

reasonableness of a determination that he violated the portion of a protective order barring repeated

harassment, had such a determination been made.

As a result, although the record may permit the conclusion that Hoodho did not violate a

provision of a protective order prohibiting “credible threats of violence, repeated harassment, or bodily

injury,” it may also allow a determination that his conviction under Section 215.50(3) of the New York

Penal Law renders him removable under INA § 237(a)(2)(E)(ii). However, we need not dwell on the

issue any further because, for the reasons set forth below, we agree with the IJ and the BIA that no

such determination need have been made in light of his concession of removability.

B. The IJ Did Not Err by Accepting the Concession of Hoodho’s Counsel.

Under the applicable regulations, an IJ is authorized to accept an alien’s concession of

removability so long as the IJ “is satisfied that no issues of law or fact remain.” 8 C.F.R. § 1240.10(c).5

5
The full text of this provision is as follows:

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 respondent admits the factual allegations and admits his or her removability under the charges and the
immigration judge is satisfied that no issues of law or fact remain, the immigration judge may determine that
removability as charged has been established by the admissions of the respondent. 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 relative, legal guardian, or friend;
nor from an officer of an institution 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.

8 C.F.R. § 1240.10(c). Hoodho does not contend that this regulation is not entitled to deference under Chevron U.S.A.,
8
Where, as here, removal is premised on a state conviction, Hoodho urges that this regulation should be

construed to mean that an “IJ should conduct a brief inspection of the alien’s conviction record to

confirm that the alien is, in fact, removable, even if the alien has conceded removability.” Petitioner’s

Br. 14. We see no basis to impose such a requirement.

Facts admitted by a party “are judicial admissions that bind th[at] [party] throughout th[e]

litigation.” Gibbs ex rel. Estate of Gibbs v. CIGNA Corp., 440 F.3d 571, 578 (2d Cir. 2006); see also

Oscanyan v. Arms Co., 103 U.S. 261, 263 (1881) (“The power of the court to act in the disposition of a

trial upon facts conceded by counsel is as plain as its power to act upon the evidence produced.”); 2

McCormick on Evid. § 254 (6th ed. 2006) (“Judicial admissions are not evidence at all. Rather, they are

formal concessions in the pleadings in the case or stipulations by a party or counsel that have the effect

of withdrawing a fact from issue and dispensing wholly with the need for proof of the fact. Thus, a

judicial admission, unless allowed by the court to be withdrawn, is conclusive in the case . . . .”

(footnote omitted)).

Admissions by parties are not subject to judicial scrutiny to ensure that the admissions are fully

supported by the underlying record. Cf. Gibbs, 440 F.3d at 578 (“Having agreed on a set of facts, the

parties who adopted the stipulation, and this Court, must be bound by them; we are not free to pick

and choose at will.” (internal quotation marks and alteration omitted)). This rule of non-inquiry

promotes efficiency and judicial economy by facilitating the concession of specific issues, thereby

“provid[ing] notice to all litigants of the issues remaining in dispute, identify[ing] those that can be

eliminated from the case and those that cannot be, narrow[ing] the scope of discovery to disputed

matters and thus reduc[ing] trial time.” Banks v. Yokemick, 214 F. Supp. 2d 401, 405-06 (S.D.N.Y.

2002). In rare cases, a court may “disregard a stipulation if to accept it would be manifestly unjust or if

Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), and we need not consider that issue here.

9
the evidence contrary to the stipulation is substantial.” PPX Enters., Inc. v. Audiofidelity, Inc., 746 F.2d

120, 123 (2d Cir. 1984) (internal quotation marks and alteration omitted).

Hoodho provides us with no basis—and we are aware of none—to subject judicial admissions

made in removal proceedings to a more stringent standard. The governing regulation provides that an

IJ need only be “satisfied that no issues of law or fact remain” for him to accept a concession of

removability. 8 C.F.R. § 1240.10(c). When the parties do not contest removability and the record

evidence does not contradict that concession, we see no reason why an IJ cannot be “satisfied” that no

legal or factual issues bar the acceptance of that concession. Accordingly, we hold that an IJ does not

err by accepting an alien’s concession of removability when that concession is not plainly contradicted

by record evidence.6 Where, as here, a concession of removability is supported by evidence of a

conviction that could render an alien subject to removal under the INA, the IJ is entitled to accept that

admission and proceed accordingly.7 As explained above, the record of Hoodho’s conviction for

violating Section 215.50(3) of the New York Penal Law is consistent with a determination that he was

removable under INA § 237(a)(2)(E)(ii). Because nothing in the record contradicted Hoodho’s

concession of removability, the IJ did not err by accepting that concession.

C. No “Egregious Circumstances” Permit Hoodho To Disavow His Attorney’s
Concession.

We have previously recognized that, in the normal course, aliens—like all other parties to

6
This holding does not imply its inverse— that an IJ would err by accepting a concession that is plainly
contradicted by record evidence. It will often be the case that evidence in the record may to some degree conflict with a
concession of removability. But this does not obviate the general rule pertaining to judicial admissions.

7
This is not to say, of course, that, when an IJ has cause to believe that a concession is in error, he must
nevertheless mechanically accept it. When the record evidence runs contrary to the concession or the IJ has reason to
believe that a mistake might have been made, an IJ may probe the basis for that concession. Nor do we hold that a
concession of removal alone—without any corroborating basis in the record— would be insufficient to form a basis for
removal. See Roman v. Mukasey, No. 07-05629, __ F.3d __, 2009 WL 129899, at *2 (2d Cir. Jan. 21, 2009) (“declin[ing]
. . . to hold that an alien’s admissions cannot constitute clear and convincing evidence of removability” where the
admissions were “the sole evidence establishing removability based on a prior conviction”).

10
litigation—are bound by the concessions of freely retained counsel. Ali v. Reno, 22 F.3d 442, 446 (2d

Cir. 1994). This is so because a party who “voluntarily chose [an] attorney as his representative in [an]

action . . . cannot . . . avoid the consequences of the acts or omissions of this freely selected agent.”

Link v. Wabash R.R. Co., 370 U.S. 626, 633-34 (1962). “Any other notion would be wholly inconsistent

with our system of representative litigation, in which each party is deemed bound by the acts of his

lawyer-agent and is considered to have notice of all facts, notice of which can be charged upon the

attorney.” Id. at 634 (internal quotation marks omitted)

Hoodho argues that in removal proceedings, “egregious circumstances” can free an alien from

his attorney’s admissions. See Velasquez, 19 I. & N. Dec. at 382; see also Magallanes-Damian v. INS, 783

F.2d 931, 934 (9th Cir. 1986) (“Petitioners are generally bound by the conduct of their attorneys,

including admissions made by them, absent egregious circumstances.”). Assuming arguendo that this is

so, we need not probe the outer limits of the meaning of the term “egregious circumstances” to

conclude that this case does not present them. Where, as here, an IJ accepts a concession of

removability from retained counsel and that concession is not contradicted by the record evidence, the

circumstances are not “egregious” in any respect. To the contrary, the acceptance by an IJ of a

plausible concession of removability is an unremarkable feature of removal proceedings. See, e.g.,

Alibasic v. Mukasey, 547 F.3d 78, 82-83 (2d Cir. 2008) (“[Petitioner] had conceded the allegations of the

Notice to Appear that stated he was not a citizen of the United States and that he was not admitted or

paroled, and he had admitted the charge of removability.”); Jian Hui Shao v. Mukasey, 546 F.3d 138, 143

(2d Cir. 2008) (“In . . . removal proceedings, [petitioner] conceded removability but applied for asylum

and withholding of removal . . . .”); Aslam v. Mukasey, 537 F.3d 110, 116 (2d Cir. 2008) (“Here,

[petitioner] admitted that he had entered the United States without inspection, thereby rendering him

inadmissible on that ground, and in October 2003, [he] conceded that he was removable.”).

11
 That, in hindsight, it might have been preferable for an alien to have contested removability,

rather than to have conceded it, does not constitute “egregious circumstances.” See, e.g.,

Magallanes-Damian, 783 F.2d at 934 (“Although looking at this [decision not to contest deportability]

now, from the vantage of hindsight, we might find this tactical choice to have been unwise, . . . [i]t is

not unusual or egregious for counsel to make tactical decisions that ultimately fizzle and redound to the

client’s detriment.” (internal quotation marks omitted)). Indeed, a recent decision by the Attorney

General of the United States explains that, in order for counsel’s performance to be considered

“egregious,” “it is not enough merely to demonstrate that one’s lawyer made an ordinary mistake or

could have presented a more compelling case.” In re Compean, 24 I. & N. Dec. 710, 732 (A.G. 2009).8

In the absence of “egregious circumstances,” Hoodho remains bound by his attorney’s concession of

removability. Finally, nothing in our decision today absolves a petitioner of the obligation to exhaust all

claims before the BIA. See 8 U.S.C. § 1252(d)(1); Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 122 (2d

Cir. 2006). An alien, unlike Hoodho, who does not object before the BIA to an IJ’s acceptance of his

concession of removability waives any such claim. Cf. Lewis v. Gonzales, 481 F.3d 125, 132 (2d Cir.

2007) (per curiam).

CONCLUSION

In sum, we hold that (1) an IJ is authorized to accept a concession of removability when that

concession is not plainly contradicted by record evidence and (2) the acceptance of a plausible

concession of removability cannot amount to “egregious circumstances” that would free an alien from

the representations of his attorney. Accordingly, Hoodho is bound by his attorney’s concession of

removability, and the petition for review is DENIED.

8
We note that the Attorney General is both the respondent to this petition and the final administrative
authority on matters resolved by the Board of Immigration Appeals. See 8 C.F.R. § 1003.1(d)(7), (h). As we have noted
in another context, “[t]his curiosity is without legal significance since the Attorney General appears before us solely in his
official capacity.” Ogunwomoju v. United States, 512 F.3d 69, 71 n.3 (2d Cir. 2008).

12