Urias-Gaxiola v. Blanche

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DEMETRIO MARTIN URIAS- No. 22-1474

GAXIOLA,

Agency No.

A209-808-635

Petitioner,

OPINION

v.

TODD BLANCHE, Attorney

General,

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted May 18, 2026

Phoenix, Arizona

Filed September 2, 2026

Before: Marsha S. Berzon, Milan D. Smith, Jr., and

Andrew D. Hurwitz, Circuit Judges.

Opinion by Judge Berzon

2 URIAS-GAXIOLA V. BLANCHE

SUMMARY*

Immigration

Granting in part and denying in part Demetrio Urias-

Gaxiola’s petition for review of a decision of the Board of

Immigration Appeals, the panel held that the BIA abused its

discretion by affirming an immigration judge’s denial of

Urias-Gaxiola’s motion to amend a pleading to correct a

factual admission.

Through counsel’s written pleadings, Urias-Gaxiola

admitted that he entered the United States without admission

or parole after inspection by an immigration officer and

conceded removability on that basis. In the motion to amend

his pleadings, he averred that he had last entered the U.S.

lawfully with a visa.

An attorney’s factual admission in removal proceedings

is generally binding on the noncitizen. However, under In

re Velasquez, 19 I. & N. Dec. 377 (BIA 1986), and Santiago-

Rodriguez v. Holder, 657 F.3d 820 (9th Cir. 2011), a

noncitizen may withdraw such an admission by establishing

that it is untrue.

The panel held that the BIA erred in affirming the IJ’s

denial of the motion to amend because the IJ denied Urias-

Gaxiola’s motion without allowing him to present evidence

that the admission was untrue. The BIA also impermissibly

usurped the IJ’s factfinding role by determining in the first

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

URIAS-GAXIOLA V. BLANCHE 3

instance that Urias-Gaxiola could not meet his burden under

Velasquez/Santiago-Rodriguez.

Accordingly, the panel remanded for the IJ to determine,

after permitting live testimony, whether Urias-Gaxiola is

entitled to withdraw the challenged admission and, if so,

whether Urias-Gaxiola is nonetheless removable. The panel

denied the remainder of the petition in a concurrently filed

memorandum disposition.

COUNSEL

Siovhan S. Ayala (argued), Ayala Law Office PC, Tucson,

Arizona, for Petitioner.

Deitz P. Lefort (argued), Trial Attorney; Brianne W. Cohen,

Senior Litigation Counsel; Office of Immigration Litigation;

Brett A. Shumate, Assistant Attorney General; Civil

Division, United States Department of Justice, Washington,

D.C.; for Respondent.

4 URIAS-GAXIOLA V. BLANCHE

OPINION

BERZON, Circuit Judge:

A noncitizen in removal proceedings may withdraw a

factual admission by an attorney by establishing the

admission is untrue. Santiago-Rodriguez v. Holder, 657 F.3d

820, 832 (9th Cir. 2011). Seeking to do just that, petitioner

Demetrio Martin Urias-Gaxiola moved to amend a pleading

submitted by his attorney and sought to testify that an

admission in that pleading was factually incorrect. The

immigration judge (“IJ”) prohibited Urias-Gaxiola from so

testifying and summarily denied his motion to amend. The

Board of Immigration Appeals (“BIA”) upheld the denial. It

also denied Urias-Gaxiola’s motion to remand for the

purpose of presenting evidence in support of the motion to

amend.

The BIA abused its discretion by refusing to give Urias-

Gaxiola a chance to testify that his attorney’s initial

admission was untrue or incorrect. Accordingly, we grant the

petition for review in part and remand for the IJ to hear the

petitioner’s testimony, review any other evidence he submits

on this issue, and make the factual findings necessary to

determine whether the petitioner may withdraw the disputed

admission. We deny the remainder of the petition for the

reasons stated in a concurrently filed memorandum

disposition.

I

The petitioner, Urias-Gaxiola, is a native and citizen of

Mexico. He last entered the United States through Nogales,

Arizona.

URIAS-GAXIOLA V. BLANCHE 5

The government issued Urias-Gaxiola a notice to appear

(“NTA”) in June 2017, charging that he was removable for

being present in the country without admission or parole. See

8 U.S.C. § 1182(a)(6)(A)(i). The NTA alleged that he

(1) was not a U.S. citizen, (2) was a Mexican citizen,

(3) arrived in the United States through Nogales on or about

December 31, 2002, and (4) had not been admitted or

paroled after inspection by an immigration officer. In

January 2018, Urias-Gaxiola filed, through counsel, a

responsive pleading admitting each of the NTA’s four

allegations and applied for cancellation of removal. The IJ

then scheduled a hearing on the merits of his cancellation

application.

On April 10, 2018, a month before the scheduled

hearing, Urias-Gaxiola’s attorney moved to amend his

pleading. The motion stated that although Urias-Gaxiola

continued to admit to the NTA’s first three allegations, he

now denied the fourth—that he had entered without

admission or parole. Instead, counsel averred, Urias-Gaxiola

“last entered the U.S. lawfully with a visa.”

At the start of the hearing on the cancellation application,

the IJ, without explanation, denied Urias-Gaxiola’s motion

to amend his pleading. Nonetheless, Urias-Gaxiola’s

attorney called him to the stand and asked him about the

circumstances of his last entry into the United States. Urias-

Gaxiola testified that he had entered the country using a visa.

He also testified that he did not recall admitting in his initial

pleading that he had entered without inspection. At that

point, the IJ interrupted, asking, “Where are you going with

this, Counsel?” Urias-Gaxiola’s lawyer explained that “the

way that he entered [the country], it’s material and there was

a mistake in the written pleadings based on what he

subsequently explained.” The IJ responded that he had

6 URIAS-GAXIOLA V. BLANCHE

already found Urias-Gaxiola removable based on the

lawyer’s initial pleading: “You [filed] it. All of a sudden,

you’re asking him does he remember it? You’re the one who

did it. Presumably you did it based upon what he told

you. . . . I don’t know how you work. The charge has been

sustained. We’re not going into it.” The IJ directed counsel

not to ask Urias-Gaxiola further questions about his entry

and to focus on his eligibility for cancellation of removal.

The attorney complied.

At the end of the hearing, the IJ ruled that Urias-Gaxiola

had testified credibly but had not shown the necessary level

of hardship to qualifying relatives to warrant cancellation of

removal. The IJ stated that he had found Urias-Gaxiola

removable “because Counsel for [Urias-Gaxiola] submitted

a document to the Court indicating that [he] admitted the

allegations and conceded the charge of inadmissibility.”

Urias-Gaxiola appealed to the BIA, challenging the IJ’s

denial of his motion to amend the pleading and the IJ’s

adverse hardship determination. While the appeal was

pending, Urias-Gaxiola filed a motion asking the BIA to

remand the case to the IJ. He attached to that motion an

affidavit averring that he had last entered the United States

in “approximately” May 2004 using a border crossing card,

a form of visitor visa. The affidavit also stated that the border

crossing card expired in 2011, that Urias-Gaxiola was unsure

at the time of his hearing where he had stored the card, and

that he found the card later while searching his home in

North Carolina. A copy of the card was attached to the

affidavit. The remand motion explained that Urias-Gaxiola

had “stated to counsel he entered without inspection because

he did not believe he was actually inspected when he

URIAS-GAXIOLA V. BLANCHE 7

arrived,” but he later learned that his “interpretation of ‘entry

without inspection’ was erroneous.”1

The BIA dismissed Urias-Gaxiola’s appeal and rejected

the motion to remand. In affirming the IJ’s denial of the

motion to amend and denying the motion to remand, the BIA

held that Urias-Gaxiola’s visa was not previously

unavailable evidence and did not establish that he had

entered the country lawfully. The BIA also determined that

his affidavit conflicted with a Form I-213 (Record of

Deportable/Inadmissible Alien) stating that Urias-Gaxiola

had entered in 2002 and had later admitted to entering

without inspection, as well as with his cancellation

application, in which he listed the year of his last entry as

2003. As to cancellation, the BIA affirmed the IJ’s hardship

determination and held that Urias-Gaxiola’s due-process

claim failed because he had not shown prejudice.

Urias-Gaxiola timely petitioned for review.

II

We review for abuse of discretion “whether the BIA has

clearly departed from its own standards.” Salgado v.

Sessions, 889 F.3d 982, 987 (9th Cir. 2018). We review the

1

Both we and the BIA have held that noncitizens are inspected and

admitted within the meaning of the Immigration and Nationality Act so

long as they present themselves for inspection and are waved through the

border by an immigration officer. Saldivar v. Sessions, 877 F.3d 812,

814 (9th Cir. 2017) (“We reaffirm that an alien is ‘admitted’ when he

presents himself for inspection and is waved through a port of

entry . . . .”); In re Quilantan, 25 I. & N. Dec. 285, 293 (BIA 2010)

(holding that “an alien who physically presents herself for questioning

and makes no knowing false claim to citizenship is ‘inspected,’ even

though she volunteers no information and is asked no questions by the

immigration authorities, and that such an alien has satisfied the

‘inspected and admitted’ requirement”).

8 URIAS-GAXIOLA V. BLANCHE

denial of a motion to remand under the same standard.

Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005).

The BIA abuses its discretion when it “acts arbitrarily,

irrationally, or contrary to law,” “fails to offer a reasoned

explanation for its decision, or . . . distorts or disregards

important aspects of the claim.” Alcarez-Rodriguez v.

Garland, 89 F.4th 754, 759 (9th Cir. 2023) (citation

modified).

For the following reasons, we hold that the BIA abused

its discretion by affirming the IJ’s denial of the motion to

amend the pleading.

A

A removal proceeding commences with the issuance of

an NTA. The NTA must specify (among other things) “[t]he

charges against the alien and the statutory provisions alleged

to have been violated.” 8 U.S.C. § 1229(a)(1)(D). By

regulation, the IJ “shall require the [charged individual] to

plead to the notice to appear by stating whether he or she

admits or denies the factual allegations and his or her

removability under the charges contained therein.” 8 C.F.R.

§ 1240.10(c). We refer to this responsive pleading as the

answer.

If the noncitizen denies the allegations, the parties may

submit evidence concerning the charges in the NTA. Id.

§ 1240.10(d). If the ground of removability is presence

without admission, the noncitizen has the burden of

establishing admissibility or lawful presence. 8 U.S.C.

§ 1229a(c)(2). The IJ must determine the noncitizen’s

removability “based only on the evidence produced at the

hearing.” 8 U.S.C. § 1229a(c)(1)(A).

URIAS-GAXIOLA V. BLANCHE 9

In contrast, “[i]f the [noncitizen] admits the factual

allegations and admits his or her removability under the

charges and the immigration judge is satisfied that no issues

of law or fact remain, the immigration judge may determine

that removability as charged has been established by the

admissions of the [noncitizen].” 8 C.F.R. § 1240.10(c).

“[A]n alien’s admissions to charges of removability can

satisfy the government’s burden of proof if the IJ relies upon

the admissions in making her determination.” Maie v.

Garland, 7 F.4th 841, 846 (9th Cir. 2021). So, “[i]f the

individual admits the factual allegations at [the pleading]

stage and the IJ accepts the admission, it binds the alien and

relieves the Government of the obligation to present any

evidence on that factual question.” Santiago-Rodriguez, 657

F.3d at 829 (citation modified). Except under the

circumstances described below, the same rule applies when

an attorney admits the allegations on the noncitizen’s behalf.

Id.

As in federal court, pleadings may be amended in

immigration court. Agency regulations provide, for

example, that “additional or substituted charges of

inadmissibility and/or deportability and/or factual

allegations may be lodged” in writing “[a]t any time during

the proceeding.” 8 C.F.R. § 1240.10(e); accord id.

§ 1003.30; see, e.g., Martinez v. Barr, 941 F.3d 907, 923–24

& n.10 (9th Cir. 2019). And the BIA has held that a defective

NTA may be amended to include legally required

information, even though no statute or regulation expressly

permits amendment. In re R-T-P-, 28 I. & N. Dec. 828, 832–

33 (BIA 2024). In so holding, the BIA analogized to Federal

Rule of Civil Procedure 15, which provides that “[t]he court

should freely give leave [to amend a pleading] when justice

so requires.” Fed. R. Civ. P. 15(a)(2). Observing that, as in

10 URIAS-GAXIOLA V. BLANCHE

federal court, “[t]he possibility of amending a document,

including a case-initiating document, is inherent in the

context of most [immigration] litigation,” the BIA held in R-

T-P- that “neither the statute nor regulations prohibit an

amendment to a notice to appear.” 28 I. & N. Dec. at 832.

IJs have “broad authority to grant motions to amend

documents in removal proceedings” and “routinely” permit

the amendment of pleadings when “appropriate and

necessary.” Id. at 839–40. As the BIA has recognized, this

practice accords with the federal courts’ “liberal stance

toward the amendment of pleadings where it is consistent

with their longstanding policy favoring the resolution of

disputes on the merits.” Id. at 832.2

B

R-T-P- did not define the circumstances in which it is

“appropriate and necessary” for an IJ to grant a noncitizen’s

motion to amend an answer. But a line of cases in both the

BIA and this court indicate that Urias-Gaxiola was entitled

to withdraw the disputed admission by amending the answer

filed by his attorney if he showed the admission was untrue.

The IJ denied Urias-Gaxiola’s motion to amend without

giving him an opportunity to make that showing. By

affirming that premature denial, the BIA erred.

2

R-T-P- referred to Rule 15 by analogy. Depending on the timing and

stage of litigation, amendment under Rule 15 may be as of right or may

require the court’s leave. Fed. R. Civ. P. 15(a). As interpreted, the

Federal Rules do not require a court to give leave in many instances. See,

e.g., Branch Banking & Tr. Co. v. D.M.S.I., LLC, 871 F.3d 751, 764 (9th

Cir. 2017) (lack of diligence); Quinault Indian Nation v. Pearson, 868

F.3d 1093, 1100–01 (9th Cir. 2017) (futility). R-T-P- was, of course, not

incorporating Rule 15 wholesale, just the general principle of liberality

regarding amending pleadings. See 28 I. & N. Dec. at 832 & n.4.

URIAS-GAXIOLA V. BLANCHE 11

i

The BIA’s precedential decision In re Velasquez, 19 I. &

N. Dec. 377 (BIA 1986), governs the treatment of an

admission by a noncitizen’s attorney in a written filing.

Santiago-Rodriguez, 657 F.3d at 830. Velasquez held that

“[a]bsent 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,” at least where the admission

“is made as a tactical decision.” 19 I. & N. Dec. at 382.

Urias-Gaxiola does not dispute that his initial answer, filed

by his attorney, meets these criteria and so presumptively

binds him.

But “Velasquez sets forth three types of ‘egregious

circumstances’ that, if present, justify relieving an alien of

his attorney’s admissions” in formal pleadings that would

otherwise be binding. Santiago-Rodriguez, 657 F.3d at 831.

A noncitizen is not bound by his counsel’s admissions if

(1) so binding him “would produce an unjust result,” (2) he

“subsequently offers evidence proving that the factual

admissions and concession of removability were untrue or

incorrect,” or (3) “such admissions were the result of

unreasonable professional judgment—i.e., ineffective

assistance of counsel.” Id. at 831–32 (citation modified).

These factors “are all related to the due process guarantee

that removal proceedings accord with fundamental fairness.”

Id. at 831. They “all concern situations in which an

attorney’s admission is not probative of the truth of the

NTA’s factual allegation[s], or where using the admission as

evidence of removability would not be fundamentally fair,

or both.” Id.

12 URIAS-GAXIOLA V. BLANCHE

Urias-Gaxiola contends that this case involves the

second circumstance—that his original answer, filed by his

attorney, was untrue or incorrect. We agree that his motion

to amend implicated this circumstance.3

Urias-Gaxiola’s original answer admitted that he entered

the United States without admission or parole after

inspection by an immigration officer and conceded

removability on that basis. Urias-Gaxiola’s proposed

amended answer denied the charge of removability and

averred that he had “last entered the U.S. lawfully with a

visa.” His attorney explained at his hearing that “there was a

mistake in the written pleadings based on what [Urias-

Gaxiola] subsequently explained” to her.

Having asserted a basis to be relieved of his counsel’s

admission, Urias-Gaxiola was entitled to “offer[] evidence

proving that the factual admission[] and concession of

removability were untrue or incorrect.” Santiago-Rodriguez,

657 F.3d at 832 (citation modified). If the IJ found that this

evidence proved that the challenged admission in the initial

answer was not true, the motion to amend should have been

granted.

3

Urias-Gaxiola does not address the first or third Velasquez/Santiago-

Rodriguez circumstance, so neither do we. We also do not consider

when, if ever, it would be “appropriate and necessary,” R-T-P-, 28 I. &

N. Dec. at 839, for an IJ to grant a noncitizen’s motion to amend the

answer on grounds other than the Velasquez/Santiago-Rodriguez

circumstances. Cf. id. at 832 (taking guidance from “general principles

and jurisprudence regarding . . . amending of documents” and

recognizing that federal courts “have taken a liberal stance toward the

amendment of pleadings”).

URIAS-GAXIOLA V. BLANCHE 13

ii

The IJ, however, denied Urias-Gaxiola’s motion to

amend without allowing him to present evidence that the

disputed admission was untrue or incorrect. In affirming that

erroneous denial, the BIA erred.

To understand why, recall what happened at Urias-

Gaxiola’s hearing: The IJ did not determine whether Urias-

Gaxiola had established one of the circumstances that, under

Velasquez and Santiago-Rodriguez, would justify

withdrawing a factual admission in a pleading. In fact, the IJ

did not acknowledge that a noncitizen may withdraw his or

her attorney’s written admission under certain

circumstances. Instead, the IJ summarily denied Urias-

Gaxiola’s motion to amend, gave no reason for doing so, and

barred him from testifying that his initial pleading was

untrue or incorrect. These actions were “inconsistent with

Velasquez and due process.” Santiago-Rodriguez, 657 F.3d

at 834.

The IJ’s lack of reasoning in denying the motion to

amend is not directly before us, as the BIA supplied its own

reasoning in affirming that denial. See Rodriguez v. Holder,

683 F.3d 1164, 1169 (9th Cir. 2012). Where, as here, the

BIA reviews the IJ’s decision de novo, “any error committed

by the IJ will be rendered harmless by the Board’s

application of the correct legal standard.” Brezilien v.

Holder, 569 F.3d 403, 411 (9th Cir. 2009) (citation

modified). But that rule does not help the government, as the

BIA did not apply Velasquez properly.

Unlike the IJ, the BIA recognized that “a noncitizen is

not bound by an attorney’s admission or concession of

removability if the noncitizen subsequently offers evidence

proving that the factual admission or concession was untrue

14 URIAS-GAXIOLA V. BLANCHE

or incorrect.” The BIA also recognized that Urias-Gaxiola

had “sought to amend [his] pleadings, alleging that the prior

admission and concession was factually incorrect because he

last entered the United States with a visa.” The BIA ignored,

however, the most critical consideration: the IJ prohibited

Urias-Gaxiola from offering evidence to establish an

“egregious circumstance” under Velasquez. The BIA thus

“deprive[d] [Urias-Gaxiola] of an opportunity to be heard,

present evidence, and to press his case fully.” Santiago-

Rodriguez, 657 F.3d at 834 (citation modified).

The BIA concluded that Urias-Gaxiola should not have

an opportunity to establish that his answer was untrue or

incorrect because, in its view, the affidavit submitted with

his motion to remand conflicted with existing evidence in the

record as to the date and manner of his entry into the United

States. But, “where the IJ has not made a necessary factual

finding, [an agency] regulation requires the BIA to remand

the factual inquiry to the IJ rather than making its own

factual finding on the matter.” Brezilien, 569 F.3d at 413; see

8 C.F.R. § 1003.1(d)(3)(iv) (providing that “the Board will

not engage in factfinding in the course of deciding cases”).

The evidence attached to the motion to remand was never

presented to or considered by the IJ, so the IJ had no chance

to address or resolve the factual disputes identified by the

BIA. By determining in the first instance that Urias-Gaxiola

could not meet his evidentiary burden under Velasquez, the

BIA impermissibly usurped the IJ’s factfinding role.

Urias-Gaxiola’s opportunity to submit an affidavit in

support of remand did not cure the IJ’s error. We have

consistently held that an IJ may not “declin[e] to hear

relevant testimony because of a prejudgment about . . . the

probative value of the testimony.” Lopez-Umanzor v.

Gonzales, 405 F.3d 1049, 1056 (9th Cir. 2005) (citation

URIAS-GAXIOLA V. BLANCHE 15

modified). “[A]dmission of a party’s testimony is

particularly essential to a full and fair hearing where

credibility is a determinative factor[.]” Oshodi v. Holder,

729 F.3d 883, 889 (9th Cir. 2013) (en banc). Accordingly,

we have explained that a noncitizen’s “written declaration

outlining the facts of his [claim] is no response to the IJ’s

refusal to hear his testimony” when that testimony “stands at

the center of his claim and can, if credible, support [the

claim] without further corroboration.” Id. at 889–90.

That principle applies here. The IJ barred Urias-Gaxiola

from testifying about the manner of his entry into the United

States, seemingly based on the mistaken view that such

testimony was irrelevant given his counsel’s concession of

removability. Urias-Gaxiola’s testimony would have been

central to establishing whether an “egregious circumstance”

relieved him of that concession. In particular, because Urias-

Gaxiola sought to contradict the factual basis for his

attorney’s initial admission, his ability to make the necessary

showing depended in large part on whether the testimony he

sought to present was credible—a determination entrusted in

the first instance to the IJ. See 8 C.F.R. § 1003.1(d)(3)(i)

(providing that the BIA may review an IJ’s credibility

determination only for clear error). Because Urias-Gaxiola

was prevented from testifying, “the IJ’s ability to make a

credibility determination . . . [wa]s severely hampered. The

IJ did not have the opportunity to judge [Urias-Gaxiola’s]

demeanor, candor, or responsiveness while testifying about”

the circumstances of his entry into the United States, “nor

did the IJ have the ability to compare for consistency his oral

presentation of those events to the way he described them in

his written [submissions].” Oshodi, 729 F.3d at 891 (citation

modified); see 8 U.S.C. § 1229a(c)(4)(C) (requiring

credibility determinations to be based on “the totality of the

16 URIAS-GAXIOLA V. BLANCHE

circumstances”). As well, Urias-Gaxiola was denied a

chance to explain any perceived inconsistencies between his

proposed amended answer and other evidence in the record.

See Shrestha v. Holder, 590 F.3d 1034, 1044 (9th Cir.

2010).4

“The end result of the IJ’s restriction on [Urias-

Gaxiola’s] testimony was that it ‘prevented the introduction

of significant testimony’ that was critical to the merits” of

his Velasquez argument. Oshodi, 729 F.3d at 893 (citation

omitted) (quoting Lopez-Umanzor, 405 F.3d at 1056). By

making its own credibility determination, the BIA usurped

the IJ’s factfinding role with regard to whether Urias-

Gaxiola could establish one of the Velasquez/Santiago-

Rodriguez factors and so avoid being bound by his attorney’s

pleading admission. That usurpation was error.

4

In affirming the denial of Urias-Gaxiola’s motion to amend, the BIA

noted that his proposed amended answer was inconsistent with a Form

I-213 (Record of Deportable/Inadmissible Alien) in the record. The form

stated that Urias-Gaxiola had admitted in 2017 to a Border Patrol agent

to entering without inspection in 2002. Had Urias-Gaxiola been allowed

to testify about the manner of his entry, the government could have used

the form to attempt to undermine his credibility and to dispute the

substance of his testimony. See, e.g., Sanchez v. Holder, 704 F.3d 1107,

1109 (9th Cir. 2012) (per curiam). But, as the BIA correctly recognized,

the IJ did not base his removability determination on the inconsistency

identified by the BIA. The IJ found Urias-Gaxiola removable solely

“because Counsel for the Respondent submitted a document to the Court

indicating that the Respondent admitted the allegations and conceded the

charge of inadmissibility.” The IJ otherwise found Urias-Gaxiola

credible as to the subjects about which he testified. The IJ could not have

fairly found that Urias-Gaxiola’s proposed amended answer was not

credible without allowing him to testify about the disputed admission.

Oshodi, 729 F.3d at 889.

URIAS-GAXIOLA V. BLANCHE 17

iii

To explain how the parties should proceed on remand,

we return to the procedures that govern their pleadings. The

government does not dispute, and we agree, that Urias-

Gaxiola sought to amend his answer through the proper

mechanism: filing a timely motion with the IJ. See R-T-P-,

28 I. & N. Dec. at 839–40. If the IJ determines—after giving

Urias-Gaxiola a full and fair opportunity to testify about the

circumstances of his entry into the United States—that the

challenged admission in the original answer was untrue or

incorrect, it will be “appropriate and necessary” for the IJ to

exercise his “broad authority to grant [the] motion[] to

amend.” Id. at 839. The IJ then may no longer treat the

withdrawn admission as binding. See Santiago-Rodriguez,

657 F.3d at 834.

Allowing Urias-Gaxiola to withdraw his initial

admission and to amend his answer will not resolve the

question of whether he is removable. When a noncitizen

denies an allegation in the NTA, “the removal hearing enters

an evidentiary stage during which the IJ receives admissible

evidence on any issue not resolved to his satisfaction at the

pleading stage.” Perez-Mejia v. Holder, 663 F.3d 403, 411

(9th Cir. 2011); see 8 C.F.R. § 1240.10(d) (providing that the

IJ “shall receive evidence as to any unresolved issues, except

that no further evidence need be received as to any facts

admitted during the pleading”). Even if Urias-Gaxiola

establishes that his lawyer’s original admission was untrue

or incorrect, he will still have the burden of proving “by clear

and convincing evidence that he . . . is lawfully in the United

States pursuant to a prior admission” or “that he . . . is clearly

and beyond a doubt entitled to be admitted to the United

States and is not inadmissible as charged.” 8 C.F.R.

§ 1240.8(c). Evidence that Urias-Gaxiola lawfully entered

18 URIAS-GAXIOLA V. BLANCHE

the United States using a valid visa may not suffice to make

this showing if he overstayed the visa.5 See id. § 1240.10(e)

(allowing the government to serve “additional or substituted

charges of inadmissibility and/or deportability and/or factual

allegations” “[a]t any time during the proceeding”); 8 U.S.C.

§ 1227(a)(1)(B)–(C) (deeming removable admitted

noncitizens who are present in violation of law and admitted

nonimmigrants who fail to maintain their nonimmigrant

status). 6 If the government charges Urias-Gaxiola with

overstaying his visa, the burden to show that he is removable

on that ground will fall on the government. See 8 C.F.R.

§ 1240.8(a) (“A respondent charged with deportability shall

be found to be removable if the [Department of Homeland

Security] proves by clear and convincing evidence that the

respondent is deportable as charged.”).

5

Even if the government can prove that Urias-Gaxiola overstayed his

visa, he could qualify for adjustment of status as an “immediate relative”

of his eldest U.S. citizen daughter, who is now older than 21. 8 U.S.C.

§§ 1151(b)(2)(A)(i), 1255(a), (c). Adjustment of status is available only

for noncitizens who were “inspected and admitted or paroled” into the

United States, id. § 1255(a), a category that includes those who entered

the country legally on a visa but stayed after the visa expired, Sanchez v.

Mayorkas, 593 U.S. 409, 418 (2021). An applicant for adjustment of

status generally must have maintained lawful status from entering the

United States through the date of filing the application, but immediate-

relative applicants are exempt from this requirement. 8 U.S.C. § 1255(c).

So if Urias-Gaxiola established that he had lawfully entered the United

States on a visa, his daughter could file on his behalf an alien relative

petition, which, if approved, would allow him to apply for adjustment of

status right away. See id. § 1151(b).

6

Having concluded that the BIA erred in affirming the IJ’s denial of

Urias-Gaxiola’s motion to amend, we need not consider whether the BIA

independently erred in denying his motion to remand.

URIAS-GAXIOLA V. BLANCHE 19

III

In sum, the BIA’s affirmance of the denial of the motion

to amend the pleading was an abuse of discretion. We

therefore grant the petition as to Urias-Gaxiola’s motion to

amend the pleading. We remand for the IJ to determine, after

permitting live testimony, if requested, whether Urias-

Gaxiola is entitled to withdraw the challenged admission in

his answer and, if so, whether Urias-Gaxiola is nonetheless

removable. We deny the remainder of the petition for the

reasons stated in our concurrently filed memorandum

disposition.

PETITION GRANTED IN PART, DENIED IN

PART; REMANDED.