United States v. Josue Michel

533 F. App'x 779

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 18, 2013
• Docket: 12-50285
• Status: Unpublished

Opinion

MEMORANDUM **

Defendant Josué Michel appeals from the district court’s denial of his motion to dismiss under 8 U.S.C. § 1326(d). We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

The government has the burden to prove an alien is removable by “clear and convincing evidence.” Estrada v. INS, 775 F.2d 1018, 1020 (9th Cir.1985). “[A]n alien’s concession of removability or admission of facts establishing removability, if accepted by the [Immigration Judge], completely ‘relieves the government of the burden of producing evidence.’ ” Pagayon v. Holder, 675 F.3d 1182, 1189 (9th Cir. 2011) (per curiam) (alteration omitted) (quoting Perez-Mejia v. Holder, 663 F.3d 403, 416 (9th Cir.2011)). But an alien’s concession of removability may not prevent a later challenge to the removal order if the concession was legally erroneous. Perez-Mejia, 663 F.3d at 416-17.

Here, Michel conceded during the “pleading stage” of his removal hearing that he was removable on both grounds listed in the Notice to Appear. See id. at 414 (citing 8 C.F.R. § 1240.10(c)). Because Michel’s concessions were legally correct, at least as to the aggravated felony ground, the government was relieved of its burden of producing evidence. See id. at 415; Pagayon, 675 F.3d at 1189. The Immigration Judge accepted Michel’s concessions and found him removable. As a result, Michel cannot demonstrate that the entry of his removal order was “fundamentally unfair” as required under § 1326(d)(3).

AFFIRMED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.