                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

MARGARET HAKOPIAN,                              No. 05-72532
                            Petitioner,           Agency No.
                  v.                             A095-585-979
MICHAEL B. MUKASEY, Attorney                      ORDER
General,                                         AMENDING
                    Respondent.                 OPINION AND
                                                  AMENDED
                                                  OPINION

          On Petition for Review of an Order of the
               Board of Immigration Appeals

                   Argued and Submitted
        September 8, 2008—San Francisco, California

                  Filed November 19, 2008
                 Amended December 10, 2008

Before: Ronald M. Gould and Carlos T. Bea, Circuit Judges,
          and John W. Sedwick,* District Judge.

                       Opinion by Judge Bea




  *The Honorable John W. Sedwick, Chief Judge, United States District
Court for the District of Alaska, sitting by designation.

                               16173
                      HAKOPIAN v. MUKASEY                16175




                          COUNSEL

Jennifer Alesio, Student Counsel, Evangeline G. Abriel Legal
Analysis, Research, and Writing, Santa Clara University
School of Law, for the petitioner.

Jeffrey S. Bucholtz, Acting Assistant Attorney General, Rich-
ard M. Evans, Assistant Director, Brooke M. Maurer, Trial
Attorney, Office of Immigration Litigation, U.S. Department
of Justice, Civil Division, for the respondent.


                           ORDER

  The opinion filed November 19, 2008, slip op. 15543, is
hereby amended as follows:

  slip op. at 15548      Replace footnote 4 with the follow-
                         ing text:

                         Although 8 U.S.C. § 1158(a)(2)(B)
                         provides that an alien must “demon-
                         strate[ ] by clear and convincing evi-
                         dence that the [asylum] application
                         has been filed within 1 year after the
                         date of the alien’s arrival in the
                         United States,” Hakopian could not
                         have established her entry date by
16176               HAKOPIAN v. MUKASEY
                        clear and convincing evidence. Only
                        relevant evidence, with “any ten-
                        dency to make the existence of any
                        fact that is of consequence . . . more
                        probable or less probable,” is admis-
                        sible. Fed. R. Evid. 401, 402. While
                        evidence can be introduced to prove
                        a fact—usually relating to back-
                        ground information—that is not dis-
                        puted and not conceded where such
                        evidence would aid the trier-of-fact’s
                        understanding, see Fed. R. Evid. 401
                        notes of advisory committee, in this
                        case the government conceded
                        Hakopian’s date of entry. Because
                        Hakopian’s entry date was admitted
                        and undisputed, no evidence would
                        tend to make its existence more or
                        less probable. Therefore, we hold the
                        statute’s requirement of “clear and
                        convincing evidence” does not apply
                        where the alien’s date of entry is
                        conceded. In other words, an alien
                        has proved by clear and convincing
                        evidence that she timely filed her
                        application if the government so con-
                        cedes.


                         OPINION

BEA, Circuit Judge:

  Margaret Hakopian petitions for review of a Board of
Immigration Appeals (“BIA”) order adopting and affirming
an Immigration Judge’s (“IJ”) decision denying her claims for
asylum, withholding of removal, and relief under the Conven-
                        HAKOPIAN v. MUKASEY                        16177
tion Against Torture (“CAT”). We hold the IJ erred by find-
ing Hakopian failed to establish by clear and convincing
evidence that she timely filed her asylum application. We
deny her petition for review, however, for the reasons set
forth in the memorandum disposition filed with this opinion.1

                             Background

   Hakopian is a native and citizen of Iran. After entering the
United States without inspection, Hakopian filed an applica-
tion for asylum and withholding of removal on July 12, 2002.
On September 6, 2002, the Immigration and Naturalization
Service (“Service”) served Hakopian with a Notice to Appear,
charging Hakopian with removability under § 212(a)(6)(A)(i)
of the Immigration and Nationality Act (“INA”). See 8 U.S.C.
§ 1182(a)(6)(A)(i). The Notice to Appear alleged that
Hakopian entered the United States at or near San Ysidro,
California, on or about April 29, 2002. The Service’s Notice
to Appear also informed Hakopian she would be given an
opportunity to admit or deny the allegations in the Notice to
Appear. At a hearing before an IJ on November 13, 2003,
Hakopian admitted she entered the United States on the same
date alleged in the Notice to Appear: April 29, 2002.

   After a hearing on the merits of Hakopian’s claims for asy-
lum, withholding of removal, and CAT relief,2 the IJ issued
an oral decision. He found that Hakopian “has no documents
to establish the date, time, and manner of her entry, only her
own testimony.” Therefore, the IJ concluded that Hakopian’s
asylum application was time-barred because Hakopian failed
to establish by clear and convincing evidence that she filed
the application within one year of entry into the United States.
  1
    We found the IJ’s determination, based on an adverse credibility find-
ing, was supported by substantial evidence.
  2
    Hakopian requested protection under CAT, in addition to asylum and
withholding of removal, at her hearing.
16178               HAKOPIAN v. MUKASEY
The IJ also denied Hakopian’s claims for asylum, withholding
of removal, and relief under CAT on the merits.

   Hakopian timely appealed the IJ’s decision to the BIA,
which adopted and affirmed the decision in a per curiam
order, citing Matter of Burbano, 20 I. & N. Dec. 872, 874
(BIA 1994). Hakopian then filed a timely petition for review
in this court.

                    Standard of Review

   Where the BIA cites Matter of Burbano and does not
express any disagreement with the IJ’s decision, we review
the IJ’s decision as if it were the BIA’s. Abebe v. Gonzales,
432 F.3d 1037, 1040 (9th Cir. 2005) (en banc).

   An applicant for asylum must demonstrate by “clear and
convincing evidence” that she filed her asylum application
within one year of entering the United States. 8 U.S.C.
§ 1158(a)(2)(B). The INA provides, inter alia, that “[n]o court
shall have jurisdiction to review a[ ] determination of the
Attorney General” whether an applicant for asylum has met
his burden of demonstrating the timeliness of his application.
See 8 U.S.C. § 1158(a)(3).

   The REAL ID Act, however, requires that no provision of
the INA that “limits or eliminates judicial review[ ] shall be
construed as precluding review of . . . questions of law raised
upon a petition for review filed with an appropriate court of
appeals.” 8 U.S.C. § 1252(a)(2)(D). A question of law
includes the “application of law to undisputed facts.” Rama-
dan v. Gonzales, 479 F.3d 646, 648 (9th Cir. 2007).

                          Analysis

  [1] In this case, the determination of the timeliness of
Hakopian’s application for asylum raises a question of law
which we have jurisdiction to review pursuant to 8 U.S.C.
                        HAKOPIAN v. MUKASEY                         16179
§ 1252(a)(2)(D). Hakopian contends the IJ erred by finding
her asylum application time-barred.3 We agree.

   [2] The government alleged Hakopian’s arrival date in its
Notice to Appear, and Hakopian admitted the government’s
allegation at her hearing before the IJ. Allegations in a com-
plaint are considered judicial admissions. See Am. Title Ins.
Co. v. Lacelaw Corp., 861 F.2d 224, 226 (9th Cir. 1988). In
immigration proceedings, the Notice to Appear serves the
same function as a civil complaint. Therefore, both the gov-
ernment and Hakopian agreed upon her date of entry, thus
rendering this fact undisputed.

   Moreover, at no point—either before or during Hakopian’s
hearing—did the government move to amend its Notice to
Appear with respect to, or otherwise contest, Hakopian’s
stated date of entry. Therefore, Hakopian could scarce be
expected to produce additional documentary evidence of her
arrival date, as the IJ required in his oral decision. Had the
government ever withdrawn its allegation of or challenged
Hakopian’s claimed entry date, a different case might obtain.

   [3] We hold the IJ erred by failing to recognize that the
government’s allegation that Hakopian entered the United
States on April 29, 2002, and Hakopian’s subsequent respon-
sive admission of the government’s allegation constituted a
judicial admission of the April 29, 2002, date of entry for the
purposes of this proceeding. Therefore, Hakopian’s entry date
  3
    Hakopian did not raise this contention in her opening brief to this
court. On April 18, 2008, we granted Hakopian’s motion to file a supple-
mental brief, in which she raised this claim. Our order stated the govern-
ment could file a response to the supplemental brief, which it did not. The
government had already discussed this issue sufficiently in its answering
brief. Therefore, we hold that Hakopian did not waive her claim that the
IJ erred in finding her asylum application time-barred.
16180                   HAKOPIAN v. MUKASEY
was undisputed and she established that her asylum applica-
tion was not time-barred.4

  [4] For the reasons set out in the memorandum disposition
accompanying this opinion, however, we deny Hakopian’s
petition for review.

   DENIED.




  4
   Although 8 U.S.C. § 1158(a)(2)(B) provides that an alien must “dem-
onstrate[ ] by clear and convincing evidence that the [asylum] application
has been filed within 1 year after the date of the alien’s arrival in the
United States,” Hakopian could not have established her entry date by
clear and convincing evidence. Only relevant evidence, with “any ten-
dency to make the existence of any fact that is of consequence . . . more
probable or less probable,” is admissible. Fed. R. Evid. 401, 402. While
evidence can be introduced to prove a fact—usually relating to back-
ground information—that is not disputed and not conceded where such
evidence would aid the trier-of-fact’s understanding, see Fed. R. Evid. 401
notes of advisory committee, in this case the government conceded
Hakopian’s date of entry. Because Hakopian’s entry date was admitted
and undisputed, no evidence would tend to make its existence more or less
probable. Therefore, we hold the statute’s requirement of “clear and con-
vincing evidence” does not apply where the alien’s date of entry is con-
ceded. In other words, an alien has proved by clear and convincing
evidence that she timely filed her application if the government so con-
cedes.
