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Hoodho v. Holder

February 6, 2009

MAHIRAM HOODHO, PETITIONER,
v.
ERIC H. HOLDER, JR., RESPONDENT.*FN1



SYLLABUS BY THE COURT

Petition for review of a decision of the Board of Immigration Appeals ("BIA") affirming a removal order entered after counsel for petitioner conceded removability before an Immigration Judge ("IJ"). We hold that an IJ is authorized to accept a concession of removability where, as here, it is not plainly contradicted by the record evidence. The acceptance by an IJ of a plausible concession of removability is an unremarkable feature of removal proceedings and therefore cannot constitute "egregious circumstances" that would free a represented party from the concessions of his attorney. Petitioner is therefore bound by his attorney's concession.

Denied.

The opinion of the court was delivered by: JOSÉ A. Cabranes, Circuit Judge

Argued: January 16, 2009

Before: CABRANESand LIVINGSTON, Circuit Judges, and EATON, Judge.*fn2

Mahiram Hoodho petitions for review of a final order of removal entered by Immigration Judge ("IJ") Patricia A. Rohan on October 5, 2006. Hoodho urges the vacatur of that order on the grounds that (1) he is not removable, (2) his attorney's concession of removability was erroneous and should not have been accepted by the IJ, and (3) the "egregious circumstances" of his case should exempt him from the general rule that a litigant is bound by the representations of his attorney.

We see no merit in these arguments. Where, as here, the record evidence does not plainly contradict the concession of an attorney, we see no basis to second guess the decision of an IJ to accept that concession and conduct removal proceedings accordingly. Removal proceedings conducted on such a basis do not amount to "egregious circumstances" that would free a litigant from the representations of his attorney. To the contrary, the acceptance by an IJ of a plausible concession of removability is an unremarkable feature of removal proceedings. A petitioner cannot disavow that concession because, in hindsight, it might have been preferable for him to have contested removability, rather than to have conceded it. Because Hoodho is bound by his attorney's concession of removability, his petition for review is denied.

BACKGROUND

Hoodho, a native and citizen of Guyana, was admitted into the United States on September 1, 1983 pursuant to a non-immigrant visitor visa. He overstayed his visa and, in 1986, married a United States citizen. Sponsored by his wife, Hoodho became a lawful permanent resident on June 8, 1990.

Hoodho's marriage has produced two children, both of whom are citizens of the United States.

Since the late 1980s, Hoodho has been involved in several domestic altercations, often requiring the intervention of law enforcement officers and, on more than one occasion, resulting in Hoodho's arrest, conviction, and incarceration. At some point in the 1990s, Hoodho's wife obtained an order of protection against him, and Hoodho was arrested for violating that order in 1998. In 2002, Hoodho was arrested for reckless assault of a child, endangering the welfare of a child, and criminal contempt, apparently for violating the restraining order; he was convicted of criminal contempt and sentenced to a sixty-day term of imprisonment. Another conviction for criminal contempt followed in 2003, the sentence for which was four months' imprisonment.

On March 27, 2003, the Criminal Court of the City of New York, Queens County, issued a protective order that enjoined Hoodho from going near his wife. That order was served on Hoodho while he was incarcerated. Three months later, on July 3, 2004, Hoodho was arrested for violating the March 27, 2003 order, and he was charged with criminal contempt in the second degree and harassment in the second degree. He pleaded guilty to the charge of criminal contempt and was sentenced to six months' imprisonment on September 7, 2004. At that time, another protective order was entered forbidding Hoodho to come "within 100 yards" of his wife. J.A. 241. Hoodho violated that order on January 21, 2006, pleaded guilty to criminal contempt, and was sentenced to a ninety-day term of imprisonment on March 21, 2006. Another protective order was issued at that time.

In late 2004, the Immigration and Naturalization Service ("INS") commenced removal proceedings against Hoodho arising from his July 3, 2004 violation of the March 27, 2003 protective order. In a Notice to Appear dated November 2, 2004, the INS alleged that Hoodho had "engaged in conduct that violated a portion of [a protective order] that involved protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued." Id. at 420. This conduct, according to the INS, caused Hoodho to be removable pursuant to Section 237(a)(2)(E)(ii) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1227(a)(2)(E)(ii).

On January 4, 2005, Hoodho appeared, with counsel, before the immigration court in Louisiana and, through counsel, conceded removability. The Department of Homeland Security ("DHS")*fn3 moved into evidence, without objection, a certified copy of Hoodho's conviction for criminal contempt in violation of Section 215.50 of the New York Penal Law and a copy of the text of that statute. J.A. 88. Based on the concession of Hoodho and the submissions of the DHS, the IJ found that removability had been established by clear and convincing evidence. Id. at 89. Hoodho then stated, again through counsel, ...


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