                                                                           FILED
                            NOT FOR PUBLICATION
                                                                           DEC 21 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


FRANK BRYAN DAWSON,                              No. 12-72635

              Petitioner,                        Agency No. A036-991-942

 v.
                                                 MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

              Respondent.


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

                    Argued and Submitted November 18, 2015
                            San Francisco, California

Before: KLEINFELD, WARDLAW, and PAEZ, Circuit Judges.

      Frank Bryan Dawson, a native and citizen of Belize, petitions for review of a

decision of the Board of Immigration Appeals (BIA) dismissing his appeal of an

Immigration Judge’s (IJ) order of removal. We have jurisdiction under 8

U.S.C. § 1252(a). We grant the petition.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      1. The BIA erred by denying Dawson’s request to be relieved of his former

counsel’s concession of removability. A non-citizen is not bound by his attorney’s

factual admissions or concession of removability where the admissions or

concession were “‘the result of unreasonable professional judgment,’—i.e.,

ineffective assistance of counsel.” Santiago-Rodriguez v. Holder, 657 F.3d 820,

832 (9th Cir. 2011) (citation omitted) (quoting In re Velasquez, 19 I. & N. Dec.

377, 383 (B.I.A. 1986)). Dawson’s former counsel conceded removability on the

basis of a 2001 removal order despite knowing that, less than three months earlier,

a federal magistrate judge had found the 2001 removal order “not legally valid.”

This concession was not a tactical decision. Neither the government nor the BIA

has identified any benefit this concession might have procured for Dawson; indeed,

Dawson’s former counsel was not prepared to seek any form of relief for his client.

See United States v. Lopez-Chavez, 757 F.3d 1033, 1042 (9th Cir. 2014).

Moreover, admitting that he was “a little confused” only moments after conceding

removability, Dawson’s former counsel was unfamiliar with the basic contents of

Dawson’s Notice to Appear and unaware of the “serious consequences” that attach

to a concession of removability. Santiago-Rodriguez, 657 F.3d at 835. Dawson’s

former attorney thus “failed to perform with sufficient competence.” Mohammed

v. Gonzales, 400 F.3d 785, 793 (9th Cir. 2005).


                                        -2-
      2. The deficient performance of Dawson’s former counsel was prejudicial.

“In situations, such as this, where an attorney’s incompetence prevents an alien

from presenting his case altogether, the proceedings are subject to a presumption of

prejudice, and we will find that [the alien] has been denied due process if he can

demonstrate plausible grounds for relief on his underlying claim.” Santiago-

Rodriguez, 657 F.3d at 835 (citation and internal quotation marks omitted).

Dawson had “plausible grounds for relief” because, as a magistrate judge had

recently determined, the 2001 removal order upon which the government based its

charges was, in fact, unlawful. Dawson’s pleading-stage admissions during his

2001 removal proceedings did not establish his removability. See Pagayon v.

Holder, 675 F.3d 1182, 1189 (9th Cir. 2011) (per curiam); Perez-Mejia v. Holder,

663 F.3d 403, 414 (9th Cir. 2011). First, Dawson did not clearly admit that he was

convicted of possessing cocaine; rather, he admitted only that “[i]t’s claimed” that

he was convicted of possessing “a controlled substance involving cocaine.”

Second, Dawson expressly denied that he was removable under the government’s

controlled substances charge. Third, the IJ did not “accept[]” Dawson’s pleadings

as “sufficient to establish removability” and instead entered the “evidentiary stage”

of the removal proceedings. Pagayon, 675 F.3d at 1189. Specifically, in his

November 6, 2001 oral decision, the IJ “placed reliance” upon certain “conviction


                                         -3-
documents” and determined that Dawson was removable “on the basis of this

evidence.” Thus, the IJ could not, and did not, find that Dawson’s pleading-stage

admissions were sufficient to establish his removability in 2001.

      3. The IJ was therefore required to determine whether Dawson’s conviction

under California Health & Safety Code § 11377(a) constituted a removable

offense. See Perez-Mejia, 663 F.3d at 414. To make this determination, the IJ was

required to apply the modified categorical approach. Coronado v. Holder, 759

F.3d 977, 984–85 (9th Cir. 2014), cert. denied, 135 S. Ct. 1492 (2015); see also

Taylor v. United States, 495 U.S. 575, 600–02 (1990). Under the modified

categorical approach, Dawson’s § 11377(a) conviction was not a removable

offense because the judicially noticeable conviction documents did not establish

that Dawson possessed any substance prohibited by Section 102 of the Controlled

Substances Act. 8 U.S.C. § 1227(a)(2)(B)(i); see Ruiz-Vidal v. Gonzales, 473 F.3d

1072, 1079 (9th Cir. 2007), abrogated on other grounds by Kwong v. Holder, 671

F.3d 872 (9th Cir. 2011); United States v. Vidal, 504 F.3d 1072, 1087 (9th Cir.

2007) (en banc). The IJ failed to conduct this analysis and instead rendered a

removal order that was, as a magistrate judge later determined, “not legally valid.”

Therefore, Dawson has established that the deficient performance of his former

counsel deprived him of a persuasive argument against the government’s charge of


                                         -4-
removability and “may have affected the outcome of the proceedings.”

Mohammed, 400 F.3d at 794 (emphasis in original).

      We conclude that Dawson has demonstrated the existence of circumstances

that justify relieving him of his former attorney’s concession of removability. We

grant the petition for review and remand to the agency with instructions to grant

Dawson’s motion to amend his pleadings and withdraw his former attorney’s

concession of removability.

      Petition for review GRANTED.




                                         -5-
                                                                           FILED
Dawson v. Lynch, 12-72635
                                                                             DEC 21 2015
KLEINFELD, Senior Circuit Judge, dissenting:                            MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS




      I respectfully dissent. Dawson cannot demonstrate prejudice because his

2001 pleadings were sufficient to establish his removability. Accordingly, the BIA

did not err in not permitting Dawson to amend his pleadings and withdraw his

former attorney’s concession of removability.



      The 2001 removal order was valid under our current case law. Dawson

admitted during the 2001 immigration hearings that both of his state convictions

involved cocaine, and that he was removable and deportable as an aggravated

felon. Based on this admission, the IJ found that he was “removable and

deportable under both Section 237(a)(2)(B)(I) and 237(a)(2)(A)(iii) of the

Immigration and Nationality Act.” When the IJ gave Dawson the opportunity to

replead, he denied being “removable and deportable,” but not because the charge

did not involve cocaine. Instead, Dawson thought he should be granted a waiver

because “I just got arrested this year in 2001 on this case from 1993 and I pleaded

guilty this year.” After this repleading, the IJ explicitly found that Dawson

“admitted . . . he was convicted on May 11, 2001 . . . for possession of cocaine,”



                                          1
before moving on to an evidentiary hearing concerning Dawson’s “citizenship and

relief from removal.” Dawson’s admissions in 2001 meant that “no further

evidence concerning the issues of fact admitted or law conceded [was] necessary”

to establish his removability.1 These admissions also made it unnecessary for the

IJ to engage in a modified categorical analysis in 2001.2



      Because of the preceding facts, Dawson cannot establish that he was legally

prejudiced by his previous attorney’s admission.3




      1
          Perez-Mejia v. Holder, 663 F.3d 403, 414 (9th Cir. 2011) (emphasis
added).
      2
          Id. at 415.
      3
          Santiago-Rodriguez v. Holder, 657 F.3d 820, 834-35 (9th Cir. 2011).



                                          2
