         12-5052
         Perez-Barrios v. Holder
                                                                                       BIA
                                                                                  Rocco, IJ
                                                                               A087 947 586
                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                         SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
     FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
     APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
     IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
     ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 4th day of September, two thousand fourteen.
 5
 6       PRESENT:
 7                PIERRE N. LEVAL,
 8                REENA RAGGI,
 9                RAYMOND J. LOHIER, JR.,
10                     Circuit Judges.
11       _____________________________________
12
13       SALVADOR PEREZ-BARRIOS, AKA SALVDOR
14       PEREZ-BARRIOS,
15                Petitioner,
16
17                          v.                                  12-5052
18                                                              NAC
19
20       ERIC H. HOLDER, JR., UNITED STATES
21       ATTORNEY GENERAL,
22                Respondent.
23       _____________________________________
24
25       FOR PETITIONER:                    Ronald D. Richey, Rockville,
26                                          Maryland.
27
28       FOR RESPONDENT:                    Stuart F. Delery, Assistant Attorney
29                                          General; Stephen J. Flynn, Assistant
 1                           Director; Karen Y. Stewart,
 2                           Attorney, Office of Immigration
 3                           Litigation, United States Department
 4                           of Justice, Washington, D.C.
 5
 6        UPON DUE CONSIDERATION of this petition for review of a

 7   Board of Immigration Appeals (“BIA”) decision, it is hereby

 8   ORDERED, ADJUDGED, AND DECREED that the petition for review

 9   is DENIED in part and in part GRANTED.

10        Salvador Perez-Barrios, a native and citizen of El

11   Salvador, seeks review of a November 28, 2012, decision of

12   the BIA that: (1) affirmed the January 26, 2011, decision of

13   Immigration Judge (“IJ”) Michaelangelo Rocco, denying his

14   request to withdraw his counsel’s concession of removability

15   and terminate removal proceedings; and (2) rejected as

16   defective his motion to remand to apply for asylum and

17   related relief.   In re Salvador Perez-Barrios, No. A087 947

18   586 (B.I.A. Nov. 28, 2012), aff’g No. A087 947 586 (Immig.

19   Ct. Buffalo Jan. 26, 2011).   We assume the parties’

20   familiarity with the underlying facts and procedural history

21   in this case.

22   A.   Concession of Removability

23        We have reviewed both the IJ’s and the BIA’s opinions

24   “for the sake of completeness.”   Zaman v. Mukasey, 514 F.3d

25   233, 237 (2d Cir. 2008)(quotation marks omitted). The

                                   2
 1   applicable standards of review are well established.      See

 2   8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder,

 3   562 F.3d 510, 513 (2d Cir. 2009).

 4       An alien in removal proceedings is bound by the

 5   admissions of freely retained counsel absent “egregious

 6   circumstances.”   Hoodho v. Holder, 558 F.3d 184, 192 (2d

 7   Cir. 2009) (quoting Matter of Velasquez, 19 I. & N. Dec.

 8   377, 382 (B.I.A. 1986)).   This Court has provided that when

 9   “an IJ accepts a concession of removability from retained

10   counsel and that concession is not contradicted by the

11   record evidence, the circumstances are not ‘egregious’ in

12   any respect.   To the contrary, the acceptance by an IJ of a

13   plausible concession of removability is an unremarkable

14   feature of removal proceedings.”    Id.   “That, in hindsight,

15   it might have been preferable for an alien to have contested

16   removability, rather than to have conceded it, does not

17   constitute ‘egregious circumstances.’”     Id. at 193.

18       Here, counsel’s concession of removability is not

19   contradicted by the record.   Indeed, counsel sought to

20   withdraw his concession as part of a change in legal tactic,

21   not to correct an error.   Moreover, contrary to Perez-

22   Barrios’s contention, the IJ’s acceptance of his counsel’s


                                   3
 1   concession of removability did not prevent him from seeking

 2   relief from removal before the IJ (he applied for voluntary

 3   departure only).   In the absence of egregious circumstances,

 4   the agency did not err in finding Perez-Barrios bound by his

 5   attorney’s concession of removability.   See Hoodho, 558 F.3d

 6   at 192-93; see also Matter of Velasquez, 19 I. & N. Dec. at

 7   382-83.   Accordingly, we deny the petition for review to

 8   this extent.

 9   B.   Motion to Remand

10        “We review the BIA’s denial of a motion to remand for

11   consideration of new evidence for abuse of discretion, and

12   will find such abuse if ‘the Board’s decision provides no

13   rational explanation, inexplicably departs from established

14   policies, is devoid of any reasoning, or contains only

15   summary or conclusory statements; that is to say, where the

16   Board has acted in an arbitrary or capricious manner.’” Li

17   Yong Cao v. U.S. Dep’t of Justice, 421 F.3d 149, 157 (2d

18   Cir. 2005) (quoting Ke Zhen Zhao v. U.S. Dep’t of Justice,

19   265 F.3d 83, 93 (2d Cir. 2001) (internal citations

20   omitted)).

21        Here, the BIA rejected Perez-Barrios’s motion to remand

22   because it was filed by an attorney other than the attorney


                                   4
 1   of record who filed his appeal.     The BIA explained that

 2   Perez-Barrios was permitted only one representative of

 3   record at any given time.     The BIA’s ruling departed without

 4   explanation from the stated policy in section 2.3(f) of the

 5   BIA Practice Manual that an alien may be represented before

 6   the BIA by more than one attorney at a time.     See Li Yong

 7   Cao, 421 F.3d at 157.   Accordingly, we grant Perez-Barrios’s

 8   petition for review to this extent.

 9       For the foregoing reasons, the petition for review is

10   DENIED in part and in part GRANTED.     Any pending request for

11   oral argument in this petition is DENIED in accordance with

12   Federal Rule of Appellate Procedure 34(a)(2), and Second

13   Circuit Local Rule 34.1(b).

14                                 FOR THE COURT:
15                                 Catherine O’Hagan Wolfe, Clerk
16
17




                                     5
