Maricela Quiroz De Morales v. William P. Barr

• Court: Court of Appeals for the Sixth Circuit
• Decided: January 29, 2020
• Docket: 18-4263
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 20a0066n.06

No. 18-4263

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Jan 29, 2020 MARICELA QUIROZ DE MORALES, Miroslava ) DEBORAH S. HUNT, Clerk Trejo Mata, ) ) Petitioner, ) ON PETITION FOR REVIEW ) FROM THE UNITED STATES v. ) BOARD OF IMMIGRATION ) APPEALS WILLIAM P. BARR, Attorney General, ) ) Respondent. )

BEFORE: GUY, SUTTON, and GRIFFIN, Circuit Judges.

GRIFFIN, Circuit Judge.

During her removal proceedings in immigration court, petitioner’s prior counsel conceded

that petitioner was an arriving alien and that she was removable pursuant to the Immigration and

Nationality Act. Petitioner seeks to negate those concessions. We deny her petition because she

has not demonstrated egregious circumstances.

I.

In 1998, petitioner Maricela De Morales—who was not a citizen or a national of the United

States—attempted to enter the United States. She was, however, apprehended and removed

pursuant to an expedited order of removal. At some point after her removal, De Morales returned

to the United States, and in 2004, had her status adjusted to lawful permanent resident, but failed

to disclose to the government that she had been the subject of an expedited removal. In 2014, No. 18-4263, DeMorales v. Barr

petitioner again attempted to enter the United States. In response, the Department of Homeland

Security (DHS or Homeland Security) served her with a Notice to Appear.

DHS made seven allegations against De Morales:

1. You are not a citizen or national of the United States; 2. You are a native of Mexico and a citizen of Mexico; 3. You were removed under the following; Port of Entry, Hidalgo, Texas, on or about November 11, 1998 as Miroslava Trejo Mata, DOB: May 10, 1966, A077-446-784; 4. You adjusted status to that of a Lawful Permanent Resident Alien, on or about June[ ] 15, 2004, in Memphis, Tennessee, but you failed to disclose to the United States Government your prior expedited removal; 5. You applied for admission into the United States on Sunday, December 28, 2014, at the Laredo, Texas, Port of Entry; 6. You procured by fraud or willful misrepresentation your immigrant visa when you failed to disclose to the U.S. Government that you had previously been removed from the United States under such identity; 7. You are an immigrant not in possession of a valid unexpired immigrant visa or other valid entry document required by the Immigration and Nationality Act.1

Based on these allegations, Homeland Security charged petitioner as inadmissible pursuant to

8 U.S.C. § 1182(a)(7)(A)(i)(I) (not in possession of valid documentation).2 During the

proceedings before the Immigration Judge (IJ), petitioner—through her prior counsel—made two

concessions that are central to this appeal. First, she conceded that she was an arriving alien (as

opposed to a lawful permanent resident). Second, petitioner conceded that she was inadmissible

under § 1182(a)(7)(A)(i)(I). After multiple hearings, the IJ ordered petitioner’s removal based on

1 Petitioner admitted allegations one, two, three, five, and seven, but denied allegations four and six. 2 DHS charged De Morales as inadmissible pursuant to 8 U.S.C. § 1182(a)(6)(C)(i) (fraud or willful misrepresentation of a material fact). Petitioner denied that charge. Subsequently, the government withdrew that charge.

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the § 1182(a)(7)(A)(i)(I) charge. Petitioner appealed to the Board. The Board dismissed

petitioner’s appeal. This timely petition followed.

II.

In petitions from the Board’s removal decisions, we review questions of law de novo.

Singh v. Gonzales, 451 F.3d 400, 403 (6th Cir. 2006). The issue in this petition—whether

petitioner is bound by her counsel’s concessions—is a question of law. See Hanna v. Holder, 740

F.3d 379, 386–89 (6th Cir. 2014). Accordingly, our review is de novo.

In immigration proceedings, “petitioners are bound by the concessions of their attorneys to

the IJ unless they can show ineffective assistance of counsel or some other egregious

circumstances.” Id. at 387 (citation omitted); see also In re Velasquez, 19 I. & N. Dec. 377, 382

(BIA 1986) (“Absent egregious circumstances, a distinct and formal admission made . . . by an

attorney acting in his professional capacity binds his client as a judicial admission.” (citation

omitted)). “As a threshold matter, to establish egregious circumstances, an alien must argue ‘that

the factual admissions or concessions of [removability] were untrue or incorrect.’” Hanna, 740

F.3d at 387 (quoting Velasquez, 19 I. & N. Dec. at 383). Additionally, “an alien’s argument that

his attorney’s concessions were incorrect must be supported by record evidence.” Id. at 388

(citations omitted).

When “an alien has argued that his or her counsel’s admission is incorrect and that

argument is supported by the record, two types of egregious circumstances justify relieving the

alien of his or her counsel’s prejudicial admissions.” Id. “The first circumstance concerns

admissions that ‘were the result of unreasonable professional judgment.’” Id. (quoting Velasquez,

19 I. & N. Dec. at 383). “The second circumstance in which an alien should be relieved of an

admission of counsel is if binding the alien to that admission would ‘produce[ ] an unjust result.’”

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Id. (quoting Velasquez, 19 I. & N. Dec. at 383). “An inadvertent admission would fall into this

category.” Id. (citations omitted). Another example is when “the propriety of an admission or

concession has been undercut by an intervening change in law.” Id. (citations omitted).

III.

In an effort to satisfy the egregious circumstances requirement, petitioner advances

arguments of both unprofessional judgment and unjust result. We are not persuaded by either.

A.

Petitioner first argues that her prior counsel’s concessions were the result of unreasonable

professional judgment. However, she did not advance this issue before the Board. “As a general

rule in this Circuit, arguments raised for the first time on appeal are forfeited.” Swanigan v. FCA

US LLC, 938 F.3d 779, 786 (6th Cir. 2019). Though it is possible for a litigant to overcome the

forfeiture rule, De Morales has not offered any reason why we should not apply the forfeiture rule

in this case. Therefore, petitioner has forfeited her unprofessional judgment argument by not

making it to the Board.

B.

Petitioner also asserts that she should “not be bound by [her] prior counsel’s concession of

removability because it would produce an unjust result.” Petitioner supports her position with only

two sentences in a footnote in her appellate brief: “If the [prior counsel’s] concession is rescinded,

then Petitioner is eligible to apply for waivers, if necessary, under 8 U.S.C. § 1227(a)(1)(H).

Petitioner was not permitted to apply for waivers under 8 U.S.C. § 1227 because prior counsel

already admitted that Petitioner was an arriving alien subject to inadmissibility.”

Petitioner’s terse assertions do not explain how enforcing the concession causes an unjust

result. The Hanna court provided two examples of circumstances that could produce an unjust

-4- No. 18-4263, DeMorales v. Barr

result: an inadvertent admission, and a situation in which “the propriety of an admission or

concession has been undercut by an intervening change in law.” 740 F.3d at 388 (citations

omitted). However, De Morales does not follow Hanna’s guidance. On the contrary, because

petitioner failed to fully develop her unjust result argument, she has abandoned it. See Vander

Boegh v. EnergySolutions, Inc., 772 F.3d 1056, 1063 (6th Cir. 2014) (observing that a failure to

fully develop an argument constitutes abandonment).

Finally, because petitioner has failed to establish a required element of her argument—the

presence of egregious circumstances—we need not address the other required element: whether

the concessions were untrue or incorrect.

IV.

For these reasons, we deny the petition for review.

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