U.S.

Department of Justice
Executive Office for Immigration Review

Board of Immigration Appeals

Office of the Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Virginia 20530

OHS/ICE Office of Chief Counsel - DAL

Mathur Law Offices, PC

2989 N. Stemmons Freeway, Suite 1000
Dallas, TX 75247

125 E. John Carpenter Fwy, Ste. 500

Irving, TX 75062-2324

Name: HERRERA LOPEZ, JORGE ISRA...

A 091-389-123

Date of this notice: 4/15/2015

Enclosed 'is a copy of the Board's decision and order in the above-referenced case.
Sincerely,

DQn.JtL C!aAhJ
Donna Carr
Chief Clerk

Enclosure
Panel Members:
Cole, Patricia A.
Greer, Anne J.
Pauley, Roger

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index
Cite as: Jorge Israel Herrera Lopez, A091 389 123 (BIA Apr. 15, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

Urenda, Robert

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 20530

File:

Date:

A091 389 123 -Dallas, TX

In re: JORGE ISRAEL HERRERA LOPEZ

APR

152015

APPEAL AND MOTION

ON BEHALF OF RESPONDENT:

Robert Urenda, Esquire

CHARGE:
Notice:

Sec.

212(a)(6)(A)(i), I&N Act [8 U.S.C. 1182(a)(6)(A)(i)] Present without being admitted or paroled

APPLICATION: Continuance; adjustment of status; remand

The respondent, a native and citizen of Mexico, appeals from the hnmigration Judge's
February 5, 2014, decision ordering him removed from the United States. The respondent has
also filed a motion to remand during the pendency of this appeal.

See 8 C.F.R. 1003.2(c)(4).

The Department of Homeland Security ("DHS") has not filed an opposition to either the appeal
or the motion to remand. The respondent's request for oral argument is denied.

See 8 C.F.R.

1003.l(e)(7). The appeal will be sustained, the motion to remand will be denied as moot, and
the record will be remanded to the Immigration Court for further proceedings consistent with this
opinion.
We review findings of fact for clear error, including credibility findings.
1003.l(d)(3)(i);

Matter of J-Y-C-, 24 I&N Dec. 260 (BIA 2007); Matter of S-H-, 23 I&N

Dec. 462 (BIA 2002).

de novo.

See 8 C.F.R.

We review issues of law, discretion, or judgment, and all other issues

See 8 C.F.R. 1003.l(d)(3)(ii).

The proceedings were initiated through issuance of a Notice to Appear (Form I-862) dated
March 28, 2013 (Exh. 1). The DHS alleged that the respondent last entered the United States on
or about June 11, 1981, without being inspected and admitted or paroled by an immigration
officer, rendering him inadmissible to the United States under section 212(a)(6)(A)(i) of the
Immigration and Nationality Act (Act), 8 U.S.C. 1182(a)(6)(A)(i). At an initial master
calendar hearing held on December 19, 2013, the respondent, through his former attorney,
admitted the factual allegations and conceded the charge of removability (l.J. at 1-2; Tr. at 2).
The respondent's attorney also requested a continuance for attorney preparation and the case was
continued until February 5, 2014 (I.J. at 2; Tr. at 2-3).
At the next master calendar hearing, the respondent attorney's requested to withdraw the
previously entered admissions and concessions (I.J. at 2-3; Tr. at 5). Specifically, counsel
argued that the concessions were made in error, because the respondent is currently present in the
United States pursuant to a lawful admission (I.J. at 3; Tr. at 5-7). Counsel offered to submit a

Cite as: Jorge Israel Herrera Lopez, A091 389 123 (BIA Apr. 15, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

IN REMOVAL PROCEEDINGS

A091 389 123

copy

of the

respondent's passport to

verify

this

claim,

but

it

does

not

appear

the

Immigration Judge made this evidence part of the record (Tr. at 7; see als o Attach. A to Resp.
Brief). The Immigration Judge denied the request to withdraw the pleadings in a decision dated
February 5, 2014, holding that the respondent is bound by his attorney's admissions and is thus
not permitted to re-litigate his manner of entry into the United States (l.J. at 2-3; Tr. at 5-7).

formal admission made before, during, or even after a proceeding by an attorney acting in his
professional capacity."

Matter of Velasquez, 19 l&N Dec. 377, 382 (BIA 1986). This applies to

any admission made as a "reasonable tactical decision" by an attorney, and we presume such
pleadings to be reasonable tactical decisions absent evidence to the contrary. Id.; see als o
Stricldand v. Washingt on, 466 U.S. 668, 689 (1984). Where an attorney's judicial admission is
tactical, only egregious circumstances so unfair as to produce an unjust result will warrant setting
aside its binding effect.

See Matter of Velasquez, supra, at 382-83; see als o Zh ong Qin Yang v.

H older, 570 Fed.Appx. 381, 383 (5th Cir. 2014).

We agree with the respondent that his prior attorney's admissions here are not binding. The
United States Court of Appeals for the Fifth Circuit, in whose jwisdiction this case arises, has
held that admissions by an attorney in the removal context are not strategic, and thus not binding,
where they have the effect of rendering an alien ineligible for relief "without any apparent
counter-advantage."

Mai

v.

G onzales, 473 F.3d 162, 166 (5th Cir. 2006). Significantly, the

concessions made by the respondent's attorney in the present case render him ineligible for
adjustment of status under section 245(a) of the Act, 8 U.S.C. 1255(a), which is only available
to aliens who are present in the United States after having been "inspected and admitted or

Moreover, these concessions were made at the initial

paroled" by an immigration officer. 1
master calendar hearing, and there was no apparent benefit to the respondent resulting from the
pleadings.
Cf Matter of Velasquez, supra, at 383 (finding an attorney's concession of
removability to be binding where it was made as a "tactic designed to enhance the chances that
[a] motion for change of venue would be granted"). We also note that the respondent has
submitted evidence to support his assertion that he is present in the United States pursuant to a
lawful admission, contrary to his attorney's concessions {Attach. A to Resp. Brief).

See id.

(explaining that an attorney's judicial admission will not be set aside absent some indication that
it is "untrue or incorrect");

see als o supra note 1. We therefore conclude that the respondent is

permitted to withdraw his admissions to the factual allegations and his concession of the charge
contained on the Notice to Appear.

The respondent seeks to adjust his status through a Petition for Alien Relative (Form I-130)

that was pending before United States Citizenship and Immigration Services (USCIS) during the
proceedings below (Tr. at 7). The respondent has submitted evidence indicating that this visa
petition was approved during the pendency of this appeal, which he provided in support of his
motion to remand (Attach. A to Resp. Supp'l Brief). In light o( our disposition of his appeal,
however, we conclude that the respondent's arguments regarding the propriety of his
continuance request for adjudication of this petition is now moot.

Cite as: Jorge Israel Herrera Lopez, A091 389 123 (BIA Apr. 15, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

As the Immigration Judge properly recognized, an alien is generally bound by "a distinct and

A091 389123

In reaching this conclusion, we express no opinion regarding whether the charge on the

Notice to Appear can be properly sustained, as this raises factual issues that must be addressed
by the Immigration Judge in the first instance.
(BIA 1996).

See Matter of L-0-G-, 21 I&N Dec. 413, 422

The parties may addrss the issues related to the respondent's inadmissibility

as

charged, or any other charge the DHS may lodge and wish to pursue in the course of remanded

opportunity to submit additional evidence and arguments to assist the Immigration Judge in
issuing a new decision. Accordingly, the following orders will be entered.
ORDER: The respondent's appeal is sustained.
FURTHER ORDER:
The record is remanded to the Immigration Judge for further
proceedings consistent with the foregoing opinion and for the entry of a new decision.

Immigrant & Refugee Appellate Center | www.irac.net

proceedings. If removability is established, the Immigration Judge should also consider the
respondent's eligibility for relief from removal. On remand, the parties will also have the

Cite as: Jorge Israel Herrera Lopez, A091 389 123 (BIA Apr. 15, 2015)
$$U

UNITED STATES IMMIGRATION COURT

1100 COMMERCE ST., SUITE 1060
DALLAS, TX 75242
CASE NO.: A091-389-123

IN THE REMOVAL CASE OF

HERRERA LOPEZ, JORGE ISRAEL
RESPONDENT

i?"

f the Court's Decision and Orders entered on

i
m a
r
D
sion
T
r
t
g
conveniencelO
e parties.
and Orders is the official opinion in this case. ( ) Both parties
d issuance of a formal oral decision in the case.
The
'J;.P ywas ordered REMOVED from the United States to
( ) in absentia.
LL/tat__ /<Ct:)
Respondent's application for VOLUNTARY DEPARTURE was DENIED and
respondentwas ordered removed to
, in the
alternative to
Respondent's application for VOLUNTARY DEPARTURE was GRANTED until
'
upon posting a voluntary departure bond in the amount
------to DHS within five business days from the date of this
of $
Order, with an alternate Order of removal to
Respondent shall present to DHS within
or
( ) thirty days
) sixty days from the date of this Order, all
necessary travel documents for voluntary departure.
Respondent's application for ASYLUM ws { ) granted
) denied
( ) withdrawn with prejudice.
( ) subject to the ANNUAL CAP under the INA section 207{a)(5).
( } Respondent knowingly filed a FRIVOLOUS asylum application.
Respondent's application for WITHHOLDING of removal under INA
section 24l(b} (3) was ( ) granted ( ) denied ( ) withdrawn with
prejudice.
Respondent's application for WITHHOLDING of removal under the Torture
Convention was ( ) granted ( } denied
} withdrawn with prejudice.
Respondent's application for DEFERRAL of removal under the Torture
Convention was ( } granted ( ) denied ( ) withdrawn with prejudice.
Respondent's application for CELLATION of removal under section
{ ) 203(b) C?f NACARA, { ) 240A(a)
) 240A(b)(1)
" )
{ ) 240A(b)(2
of the INA, was { ) granted ( ) denied
) withdrawn with prejudice.
If granted, it was ordered that the DHS issue all appropriate documents
necessary to give effect to this Order. Respondent ( ) is
{ ) is not
subject to the ANNUAL CAP under INA section 240A(e).
Respondent's application for a WAIVER under the INA section
was ( ) granted ( ) denied ( } withdrawn or
) other
{
} The conditi9ns imposed by
INA section 216 on the repondent1s permanent resident status were removed.
Respondent's application for ADJUSTMENT of status under section
was
of the ( ) INA ( ) NACARA
( )
( ) granted ( ) denied ( ) withdrawn with prejudice. If granted,
it was ordered that DHS issue all. appropriate documents necessary to
give effect to this Order.

f';lh

: = !: ! ! !

Immigrant & Refugee Appellate Center | www.irac.net

i s

ORDERS

\.

()

1:

IJb
RESPONDENT:
HERRERA LOPEZ, JORGE ISRAEL
.
'

Respondent's status was REsc J.rn ED pursuant to the INA section 246.
Respondent's motion to WITHDRAW his application for admission was
(
} granted
) denied.
If the respondent fails to abide by any of
the conditions directed by the district director of OHS, then the

CASE NUMBER: 091-389-123

/@ /l'//kJfl/;lb-f"'
?

Date:

Feb 5, 2014
L:'\

APPEAL: (

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THIS DO

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CERTIFICATE OF SERVICE
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Immigrant & Refugee Appellate Center | www.irac.net

\,

alternate Order of removal shall become immediately effective without

further notice or proceedings: the respondent shall be removed from
the United States to ---Respondent was ADMITED as a
until
;
:' As a condition of admissi:r;i, the respondent was
ordered to l6t a! $i.
bond.
] Case was (. ) /TERMINATED
) with
) without prejudice
/
( -\ i ADMINISTRATIVELY
CLOSED.
] .RsljOdent was orally advised f the LIMITATION on discretionary
elief and consequences for failure to depart as ordered.
[
] If you fail to voluntarily depart when and as required, you shall
be subject to civil money penalty of at least $1,000, but not more than
$5,000, and be ineligible for a period of 10 years for any further
relief under INA sections 240A, 240B, 245, and 24a (INA Section 240B(d)).
] If you are under a final order of removal, and if you willfully fail
[
or refuse to 1) depart when and as required, 2) make timely application
in good faith for any documents necessary for departure, or 3) present
yourself for removal at the time and place required, or, if you conspire
to or take any action designed to prevent or hamper your departure, you
shall be subject to civil money penalty of up to $500 for each day under
such violation.
(INA section 274D(a)). If you are removable pursuant
to INA 237(a), then you shall further be fined and/or imprisoned for up
o years.
(INA section 24..!.(a)}):)
...
(1 ) )
[ /Qther:
.
.

l
E:
;
,.;1
-----

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. ..... I

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
DALLAS, TEXAS

In the Matter of

JORGE ISRAEL HERRERA LOPEZ

RESPON DENT

)
)
)
)

CHARGE:

Violation of Section 212(a)(6)(A)(i)

APPLICATIONS:

None stated.

IN REMOVAL PROCEEDINGS

ON BEHALF OF RESPONDENT:

Shamila Malik
Dallas, Texas

ON BEHALF OF OHS:

Rosalyn Gonzales
Dallas, Texas

ORAL DECISION OF THE IMMIGRATION JUDGE

The respondent is a male native and citizen of Mexico who was issued a
Notice to Appear on March the 28th of 2013. See Exhibit 1.
The respondent appeared before the court along with his attorney or
record, Ms. Shamila Malik, on December the 19th of 2013 for an initial master calendar
appearance. The record would reflect that his attorney waived the formal
acknowledgement of her client's rights, acknowledged proper receipt and service of the
NTA, which was marked and admitted as Exhibit 1.

Immigrant & Refugee Appellate Center | www.irac.net

February 5, 2014

File: A091-389-123

The respondent, through his attorney of record, admitted allegations one,

two, three, and four, and the respondent's attorney conceded removability under
Section 212(a)(6)(A)(i). The record would reflect that the respondent's attorney

Based upon the admissions and the concessions entered by the

respondent, through his attorney of record, the court found that the respondent had
conceded his removability as charged, and that Mexico had been designated as the
country of removal. Therefore, the court found that the respondent's removability had
been established pursuant to Section 240(c)(1 )(A) of the Act.
The record would reflect that the respondent's attorney then requested a
continuance for attorney prep. The record would reflect that the court then granted the
respondent's attorney's request, reset the case until February the 5th, 2014 at 8:30 in
the morning, and told the attorney on the record to be ready today to designate relief
when returning to court on February the 5th.
The parties appeared before the court again on February the 5th of 2014,
and the respondent's attorney said that she now wanted to revisit pleadings and wanted
to deny the charges. She attempts to rely on the Board's decision in Matter of
Velasquez for her ability to do that. However, the respondent's attorney misconstrues
the Board's decision in Matter of Velasquez. The Board told us in Matter of Velasquez,
19 l&N Dec. 337 (BIA 1986) that the distinct and formal admissions made by the
respondent through counsel during his removal proceedings are binding on the
respondent as judicial admissions and he will not now be heard to challenge the factual
findings or legal conclusions of the immigration judge that arose from those admissions.
The respondent's attorney wants to claim, well, there are egregious
circumstances as the Board identified in Matter of Velasquez that should allow us to re-

A091-389-123

February 5,

2014

Immigrant & Refugee Appellate Center | www.irac.net

designated Mexico as the country of removal.

plead. When asked what those egregious circumstances are, Ms. Malik says, well, I
was wrong to have previously admitted that he was an EWE entrant. Those are not
egregious circumstances. The respondent appeared with an attorney of record, in fact,

the court today. The respondent was fully represented by competent counsel who
admitted that he had entered the United States illegally on June the 11th, 1981. The
fact that the respondent now thinks that that was wrong doesn't constitute egregious
circumstances.
We know from the Supreme Court's decision in Link v. Wabash Railroad
that in civil cases that respondents and parties to civil actions are bound by the choices
and the consequences and the actions of their lawyer that they make. Mr. Herrera
chose to be represented by Ms. Malik. She came into court. She made admissions in a
civil proceeding. Those admissions are judicial admissions, and as the Supreme Court
told us in Link v. Wabash Railroad, and as the Board told us in Matter of Velasquez,
those distinct and formal admissions bind the respondent and his attorney.
The respondent then said, well, my client seeks to adjust status. He has a
child over the age of 21. However, further inquiry reveals that no 1-130 has even been
filed. Therefore, the respondent is not eligible for adjustment of status, and there is no
reason to even go through the Hashmi criteria because an 1-130 petition has not even
been file don behalf of this respondent.
Then the respondent's attorney says, well, I want a continuance to go file
an 1-130. That is not good cause for a continuance. The court previously granted Ms.
Malik's request for a continuance on December the 19th of 2013 to be ready to state
relief today. She had almost two months to be ready today, and no 1-130 petition was
filed.

A091-389-123

February 5,

2014

Immigrant & Refugee Appellate Center | www.irac.net

the same attorney who's now wanting to undo the pleadings she made last time, before

It would then appear to the court that based upon the respondent's date of
entry of June of 1981, whether or not he would be eligible for non-LPR cancellation. We
learned that while the respondent is married to an individual who is illegally present in

respondent does have one unmarried child under the age of 21 who is a U.S. citizen.
However, then Ms. Malik admitted that her client has a previous conviction for assault
causing bodily injury, and in accordance with the decision of the United States Circuit
Court of Appeals for the Fifth Circuit in Matter of Esparza, we know that the respondent
is not eligible for non-LPR cancellation because the 5th Circuit told us in Matter of
Esparza that the assault of bodily injury would now constitute a crime involving moral
turpitude, and therefore in accordance with the Board's decision in Matter of Cortez, the
respondent would be statutorily ineligible for that form of relief.
The respondent was then offered voluntary departure, and the record
would reflect that it was rejected by his attorney.
Therefore, there being no relief stated by the respondent, it is hereby
ordered that he be removed from the United States to the nation of Mexico.
The respondent will be advised of his appeal rights separately on the
record.

MICHAEL P. BAIRD
Immigration Judge

A091-389-12 3

February 5,

2014

Immigrant & Refugee Appellate Center | www.irac.net

the United States, and therefore not eligible to be a qualifying relative, that the