                                                                           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                             NOT FOR PUBLICATION                            JUL 18 2013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.




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