FILED NOT FOR PUBLICATION DEC 13 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT CESAR ARTURO BELTRAN-TREJO, No. 15-72862 Petitioner, Agency No. A205-065-038 v. MEMORANDUM* MATTHEW G. WHITAKER, Acting Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted November 16, 2018** Pasadena, California Before: W. FLETCHER and PAEZ, Circuit Judges, and GLEASON,*** District Judge. Petitioner Cesar Beltran-Trejo petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an Immigration * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Sharon L. Gleason, United States District Judge for the District of Alaska, sitting by designation. Judge’s (“IJ”) decision to deny his 1) motion to withdraw prior admissions, 2) motion to suppress and terminate proceedings, 3) motion to cross-examine on the contents of the Government’s Form I-213, and 4) motion for a continuance. We have jurisdiction under 8 U.S.C. § 1252 and we deny the petition. Beltran-Trejo was arrested on October 25, 2012. Biometric data collected in the course of his arrest linked him to a prior immigration file showing that Beltran- Trejo was a native and citizen of Mexico. Beltran-Trejo alleges the arrest was without probable cause and therefore in violation of the Fourth Amendment. The Department of Homeland Security (“DHS”) sent him a Notice to Appear and began removal proceedings. Beltran-Trejo’s prior attorney made four factual admissions and conceded removability before seeking prosecutorial discretion. Beltran-Trejo’s subsequent attorney sought to withdraw those admissions on the ground that his prior attorney had not seen the Government’s Form I-213—which contains Border Patrol’s narrative of Beltran-Trejo’s arrest and the grounds for his removability—at the time she made the admissions and that, if she had, she would have realized Beltran- Trejo had been arrested in violation of the Fourth Amendment. The BIA affirmed the IJ’s denial of the motion to withdraw the admissions. 2 An individual in immigration proceedings is bound by his attorney’s admissions, unless there are “egregious circumstances.” Santiago-Rodriguez v. Holder, 657 F.3d 820, 830 (9th Cir. 2011) (citing Matter of Velasquez, 19 I. & N. Dec. 377, 382 (BIA 1986)). “Egregious circumstances” fall into three categories: 1) if the admission would produce an “unjust result,” such as where it was “inadvertent” or its “propriety . . . has been undercut by an intervening change in law;” 2) if the petitioner can show the admission was “untrue or incorrect;” or 3) if the admission was “the result of unreasonable professional judgment.” Id. at 831–32. Only the third exception plausibly applies here. The third exception is analyzed as a Fifth Amendment ineffective assistance of counsel claim, which requires the petitioner to show both deficient performance and prejudice. See id. at 834–35. Beltran-Trejo argues it was deficient performance to ...
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