Pagayon v. Holder

A pleading stage admission of an allegation supporting removal in an immigration removal proceeding, can be relied on by the IJ for determining removal, but removal is not supported if the admission is made in an evidentiary stage of the proceeding; a court could not sustain removal if there is insufficient proof of a conviction or allegation in the documentary evidence coupled with an evidentiary stage admission.

Bryan Vincent I. Pagayon, a citizen of the Philippines and permanent resident of the United States, twice admitted in an immigration hearing considering his removal that he was convicted of “possession of a controlled substances, methamphetamine.” The government produced documents alleging the nature of the controlled substance (“CS”) offense as a methamphetamine conviction, but the abstract of judgment only showed that the drug offense was handled by a plea. Pagayon appealed the Board of Immigration Appeals removal order to the 9th Circuit, arguing that the government failed to prove the nature of the offense. The Ninth Circuit relied on Perez-Mejia v. Holder which harmonized prior cases. The Court withdrew 642 F.3d 1226 (9th Cir. 2011) (“Pagayon I”). When determining that the drug offense was of the nature supporting removal, the IJ could conclude that the offense was of that nature based on a pleading stage admission, but not an evidentiary stage admission.” The two phases are “not always neatly divided,” as the Court said in Perez-Mejia v. Holder, because questions often veer from one phase to the other in the hearings. DENIED.