Beruflich Dokumente
Kultur Dokumente
Before
Lynch, Chief Judge,
Thompson, Circuit Judge,
Smith, District Judge.*
July 8, 2014
Benjamin
Franklin's words ring true for Petitioner Dione Pereira Lima, who
struggles mightily to take back his words in the proceedings below,
while simultaneously attempting to assert new claims of error.
In
Lima
removability.
attempts
to
undo
his
attorneys'
concessions
of
for review.
I. BACKGROUND
Lima is a native and citizen of Brazil who entered the
United States on or about December 16, 2004. He adjusted status to
that of lawful permanent resident on January 27, 2009.
Later that
year, Lima was arrested and charged with breaking and entering in
the daytime in violation of Mass. Gen. Laws ch. 266 18.1
Brought
The court
On January 4, 2011, he
years of probation.2
Lima's
convictions
quickly
resulted
in
consequences
removability ensued.
appeared
on
March
3,
2011.
During
the
course
of
proceedings that day, counsel told the IJ that Lima "has [been
convicted of] two crimes of moral turpitude, which he has a
breaking and entering of a house and breaking and entering of a
vehicle."
conceding
NTA's
removable as charged.
allegations
and
admitting
that
Lima
was
his
return,
and
in
spite
of
his
past
-4-
for May 5.
counsel explained that Lima "did not agree with the course of
action that his previous counsel wanted to take on the case and he
seeked [sic] our office to represent him from this point forward."
She never denied or disavowed Lima's first attorney's admission
that his 2009 conviction was for breaking into a "house." She did,
however, request a continuance so that Lima could move to vacate
both convictions in the Malden District Court. Counsel stated that
Lima had not been advised of the immigration consequences of
pleading to the criminal charges and would, therefore, seek to
overturn them pursuant to the Supreme Court's ruling in Padilla v.
Kentucky.4
The IJ first noted that Lima had previously indicated he
would accept a removal order. He denied Lima's motion to continue,
observing
that
he
did
not
know
how
long
it
would
take
the
The IJ
court.
4
on
Lima's
removability."
Lima
"admissions,
as
well
as
his
concession
of
to
the
Board
of
Immigration
Appeals
("BIA"), taking the position that the IJ erred in not granting him
a continuance to collaterally attack his state court convictions.
Notably, Lima's brief to the BIA contains the explicit statement
that Lima "is removable for two convictions for which [Lima] is
actively pursuing post-conviction relief."
in
hand,
proceedings.
Lima
filed
Motion
to
Reopen
With this
his
removal
IJ
resumed
proceedings
on
December
8,
2011,
This
and "do the same thing that [he] did the last time," i.e., seek to
have
the
pending.6
remaining
conviction
vacated
while
his
appeal
was
of
his
criminal
convictions
were
for
crimes
involving
moral
turpitude.
Lima filed a second appeal with the BIA.
this
time
that
the
government
failed
to
prove
He contended
by
clear
and
Further, Lima
Neither
-8-
challenging
his
removability
on
the
grounds
that
his
2009
conviction was not for a crime involving moral turpitude, his prior
counsel
had
already
conceded
that
both
the
2009
and
2011
-9-
into
concessions.
a
Id.
noncitizen's
at
32
removability
(finding
based
noncitizen's
upon
his
concession
of
That statute
8 U.S.C. 1227(a)(2)(A)(i).
The BIA,
It is
that Lima is bound by his admissions through counsel that (1) his
2009 conviction was for a crime involving moral turpitude, and (2)
that he is removable. It additionally argues that because Lima did
not challenge removability before the IJ in the initial proceedings
or before the BIA in his first appeal, it is too late for him to do
so now.
And,
the
substantial
BIA's
finding
evidence
in
of
the
removability
record.
concessions.
-11-
We
was
begin
supported
with
by
Lima's
we
have
noted,
the
BIA
held
Lima
to
his
first
His
This
attorney also stated, on the record, that the 2009 conviction arose
out of Lima's having broken into a "house."8
Schott Motorcycle
Supply, Inc. v. Am. Honda Motor Co., Inc., 976 F.2d 58, 61 (1st
Cir. 1992) (internal quotation marks omitted).
Where a
Karim v.
Furthermore,
removable.
2005).
admissions
amounted
to
the
type
of
"egregious
fails
to
even
address
successor
counsel's
concession
of
-13-
hearing
clearly
indicate
that
Lima's
counsel
conceded
Id.
Karim, 269
-14-
convincing evidence."
C.F.R.
1240.10(c).
Thus,
although
the
government
must
has
admissions.
been
established
Urizar-Carrascoza,
based
727
on
F.3d
at
the
33;
noncitizen's
8
C.F.R.
1240.10(c); see also Karim, 269 Fed. App'x. at 6-7 (explaining that
an
IJ
may
rely
on
noncitizen's
pleadings
to
determine
removability).
Our sister circuits have reached similar conclusions. In
Selimi v. I.N.S., the Seventh Circuit held that the government was
relieved of its burden to prove removability where the noncitizen
conceded removability because the concession "was in the nature of
a judicial admission, and such an admission has the effect of
withdrawing the issue from controversy."
Cir. 2002).
Perez-Mejia v.
Id. at 191.
the
IJ
of
Id.
plausible
concession
of
removability
is
Id. at 187.
an
Thus,
the Second Circuit held that a petitioner may not take back a
concession of removability when, "in hindsight, it might have been
preferable for him to have contested removability" instead.
Id.
the
fact
from
contention
for
the
duration
of
the
litigation."
Cir. 2010).
-16-
In
inconsistent
concession
was
with
both
First
of
Circuit
fact
and
precedent,
law.
One
because
of
the
Lima's
factual
To sum up,
the BIA did not err in holding Lima to his attorneys' concessions
of removability, nor did it abuse its discretion in determining
that Lima was removable based upon his 2009 conviction.
-17-
2. Lima's Silence
Moving on, we must now account for Lima's previous
silence on two supposed due process violations.
First, Lima
contends that the IJ denied him due process by denying his second
attorney's request to amend the original pleadings.
He says this
that
his
request
applicable regulations.
should
See
have
been
granted
pursuant
to
BIA
could
not
adjudicate
because
-18-
of
their
predominately
'involve
procedural
errors
correctable
by
the
BIA,
(quoting Capric v. Ashcroft, 355 F.3d 1075, 1087 (7th Cir. 2004)).
Lima's
objections
to
alleged
procedural
errors,
2012)
(denial
discretion).
of
continuance
reviewed
for
abuse
of
exhaustion requirement.
Our review of the record makes plain that Lima's appeal
to the BIA failed to raise any argument whatsoever regarding the
IJ's denial of his sought-after continuance or his request to amend
the pleadings.
-19-
Accordingly, Lima