United States v. Josue Michel

Court of Appeals for the Ninth Circuit · 12-50285 · 2013-07-18 · Unpublished

UNITED STATES of America, Plaintiff-Appellee, v. Josue MICHEL, Defendant-Appellant

Area: other
Panel: Stephen S. Trott (author), William Stein, Fletcher

Analysis

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Opinion

FILED NOT FOR PUBLICATION JUL 18 2013

MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 12-50285 Plaintiff - Appellee, D.C. No. 3:11-cr-02586-H-1 v. MEMORANDUM* JOSUE MICHEL, Defendant - Appellant.

Appeal from the United States District Court for the Southern District of California Marilyn L. Huff, District Judge, Presiding Argued and Submitted June 3, 2013 Pasadena, California Before: TROTT and W. FLETCHER, Circuit Judges, and STEIN, District Judge.** Defendant Josue 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.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Sidney H. Stein, District Judge for the U.S. District Court for the Southern District of New York, sitting by designation. 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.