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01-1608 Selimi v. INS

By: dmc-admin//December 9, 2002//

01-1608 Selimi v. INS

By: dmc-admin//December 9, 2002//

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“Selimi argues that he was deprived of due process because the INS failed to prove that he was excludable under section 212(a)(6)(E) by clear, convincing, and unequivocal evidence, including in particular evidence that he acted with the requisite knowledge and intent in accompanying his wife, children, and cousin back to the United States. But Selimi relieved the INS of that burden when, through his attorney, he conceded his excludability. Concessions of this sort, often motivated by tactical and pragmatic considerations, are routinely made in immigration proceedings. See, e.g., Reyes-Hernandez v. INS, 89 F.3d 490, 492 (7th Cir. 1996). Selimi suggests that because his attorney simply conceded excludability generally, without admitting any facts that would establish his excludability, the INS remained obligated to prove, and the Immigration Judge was still required to find, that he was excludable. But the concession that Selimi’s attorney made was in the nature of a judicial admission, and such an admission has the effect of withdrawing an issue from controversy. See, e.g., Solon v. Gary Community School Corp., 180 F.3d 844, 858 (7th Cir. 1999). Having formally conceded that he was excludable, Selimi may not now contend that the INS’s proof of excludability was insufficient.

“Given that its witnesses on the subject of Selimi’s excludability were in New York, the INS had a plausible basis to argue that any hearing on that subject should take place in New York, and the IJ in New York expressly agreed with that argument when he denied Selimi’s initial request for change of venue. A.R. 284. Selimi and his attorney then made a calculated decision to concede his excludability, which paved the way for transfer of the case to Chicago, and later not to request leave from the Chicago IJ to withdraw that concession. The INS’s avowed intent to ask that the case be returned to New York if Selimi withdrew his concession does not strike us as a particularly lethal threat. Even assuming that the Chicago IJ was likely to grant such a request, the record gives us no reason to believe that the prospect of litigating his excludability in New York rather than Chicago was so onerous as to render involuntary his decision not to contest his excludability.”

Dismissed.

Petition for Review of an Order of the Board of Immigration Appeals, Rovner, J.

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