Hanna v. Holder, 740 F.3d 379 (6th Cir. Jan. 17, 2014) (noncitizen was qualified to challenge concession of removability by counsel where a change in the law occurred, concerning how that evaluation of deportability is made, that would render removal as charged unjust).

The court explained the conditions under which a noncitizen could challenge counsels concession of removability as follows:

In a removal proceeding, petitioners are bound by the concessions of their attorneys to the IJ unless they can show ineffective assistance of counsel or some other egregious circumstances. Gill v. Gonzales, 127 Fed.Appx. 860, 862"63 (6th Cir.2005); 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.); In re Velasquez, 19 I. & N. Dec. 377, 382 (BIA 1986) (Absent egregious circumstances, a distinct and formal admission made before, during, or even after a proceeding by an attorney acting in his professional capacity binds his client as a judicial admission.). This court has yet to clarify those egregious circumstances sufficient to relieve an alien of his counsel's prejudicial admissions. The BIA, however, clarified the meaning of egregious circumstances in Velasquez. See 19 I. & N. Dec. at 383. Building on Velasquez, other federal courts of appeals have developed a framework to determine egregious circumstances. See, e.g., Santiago"Rodriguez v. Holder, 657 F.3d 820, 831"36 (9th Cir.2011); Hoodho v. Holder, 558 F.3d 184, 192 (2d Cir.2009).

As a threshold matter, to establish egregious circumstances, an alien must argue that the factual admissions or concessions of [removability] were untrue or incorrect. Velasquez, 19 I. & N. Dec. at 383; see, e.g., Mai v. Gonzales, 473 F.3d 162, 167 (5th Cir.2006) (reversing BIA's denial of a motion to reopen, where alien's prior attorney had admitted NTA's factual allegations that alien strongly denied); cf. Roman v. Mukasey, 553 F.3d 184, 187 (2d Cir.2009) (rejecting that the government must submit evidence of an alien's prior conviction because the alien does *388 not allege that the admissions were inaccurate); Torres"Chavez v. Holder, 567 F.3d 1096, 1102 (9th Cir.2009) (refusing to permit alien to withdraw attorney's tactical decision to admit alienage because attorney simply conceded that [client] was an alien, a fact that [client] has never suggested is untrue). Further, an alien's argument that his attorney's concessions were incorrect must be supported by record evidence. See, e.g., Hulse v. Holder, 480 Fed.Appx. 23, 26 (2d Cir.2012) (denying petition for review of BIA decision denying withholding of removal because admission of procuring benefit by entering into fraudulent marriage was not contradicted by the record evidence); Hoodho, 558 F.3d at 192 (denying petition for review of BIA decision because [w]here, as here, an IJ accepts a concession of removability from retained counsel and that concession is not contradicted by the record evidence, the circumstances are not egregious' in any respect).

Where an alien has argued that his or her counsel's admission is incorrect and that argument is supported by the record, two types of egregious circumstances justify relieving the alien of his or her counsel's prejudicial admissions. The first circumstance concerns admissions that were the result of unreasonable professional judgment. Velasquez, 19 I. & N. Dec. at 383; see also Santiago"Rodriguez, 657 F.3d at 834"36 (holding that BIA erred in not permitting alien to withdraw attorney's admission where such admission was made without any factual basis and constituted deficient performance); In re Morales"Bribiesca, No. A047 770 293, 2010 WL 4500889, at *2 (BIA Oct. 18, 2010) ([T]he respondent's prior attorney admitted that she conceded the respondent's removability [for alien smuggling] without first speaking to the respondent or discussing the factual allegations with the respondent ... [and] given the egregiousness of the representation, we do not deem the attorney's admission binding on the respondent. (citing Velasquez, 19 I. & N. Dec. at 382)); In re Shafiee, No. A24 107 368, 2007 WL 1168488, at *1 (BIA Mar. 2, 2007) (granting motion to reopen and holding that attorney's concession of removability based on alien's insistence on expediting a case is no excuse for failing to research and advise a client that there is no sound basis for the charges).

The second circumstance in which an alien should be relieved of an admission of counsel is if binding the alien to that admission would produce[ ] an unjust result. Velasquez, 19 I. & N. Dec. at 383. An inadvertent admission would fall into this category. See, e.g., Ali v. Reno, 829 F.Supp. 1415, 1425 (S.D.N.Y.1993) (holding, in habeas corpus proceeding reviewing the rescission of permanent resident status, that alien could not withdraw the prior concessions of counsel because there has been no showing that counsel's concessions regarding rescission and excludability were inadvertent, unfair or extraordinary), aff'd, 22 F.3d 442 (2d Cir.1994); cf. Cortez"Pineda v. Holder, 610 F.3d 1118, 1122 n. 2 (9th Cir.2010) (refusing to bind the government to a mistaken factual assertion regarding the alien's entry date). So too would a circumstance where the propriety of an admission or concession has been undercut by an intervening change in law. In re Chavez"Mendoza, No. A90 542 948, 2005 WL 649052, at, * 1 n. 3 (BIA Feb. 2, 2005); see, e.g., Santiago"Rodriguez, 657 F.3d at 833 (Binding [petitioner] to the admission that he smuggled his brother ... even after [an intervening change in the law] would produce[ ] an unjust result, if [petitioner] can make a prima facie showing that his actions would not constitute smuggling under the clarified, correct interpretation of the smuggling*389 statute. (quoting Velasquez, 19 I. & N. Dec. at 383)); Huerta"Guevara v. Ashcroft, 321 F.3d 883, 886 (9th Cir.2003) (permitting alien to challenge removability despite concession because intervening change in law meant alien was not removable).

(Id. at 387-389.)