The regulation at 8 C.F.R. 1240.10(c) provides that an IJ may accept a respondent's admission of the allegations and concession of the charges lodged, in lieu of ICE having to satisfy its statutory burden of proving deportability or inadmissibility. Although this mechanism essentially affords an alternative to the statutory requirement under 8 U.S.C. 1229a(c)(3)(B) that ICE establish removability by clear and convincing evidence, the regulatory language is plain that the IJ must be "satisfied" that "no questions of law or fact remain" id., and the plain language of a regulation must be given effect. Matter of Masri, 22 I. & N. Dec.1145 (BIA 1999).



When a respondent seeks to withdraw his concession, providing substantial reasons in support of his election to do so during the course of his hearing, ICE should be required to carry its statutory burden of proof. Similarly, where a criminal statute is divisible, the record must contain admissible evidence on which an IJ can rely. Cf. Matter of Pichardo, 21 I. & N. Dec. 330 (BIA 1996) (holding that in-court testimony concerning respondent's actual conduct was not admissible to prove the nature of his conviction). At the very least, an effort to withdraw a concession should trigger an inquiry by the IJ before she can reasonably be "satisfied," that no questions of law or fact remain. Thanks to Lory Diana Rosenberg.



In the absence of egregious circumstances, the respondents remain bound by their attorney's original concession of removability at the February 13, 2002, master calendar hearing in New York. See, e.g., Matter of Compean, Bangaly & J-E-C-, 24 I&N. Dec. 710, 732 (A.G. 2009); see also Magallanes-Damian v. INS, 783 F.2d 931, 934 (9th Cir. 1986) ("petitioners are generally bound by the conduct of their attorneys, including admissions made by them, absent egregious circumstances.").Thanks to Maris J. Liss