NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 13 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT CARLOS ALEXANDER CASTILLO- No. 17-72936 CRESPO, Agency No. A206-676-194 Petitioner, v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted October 16, 2019 San Diego, California Before: HURWITZ, OWENS, and LEE, Circuit Judges. Carlos Alexander Castillo-Crespo, a native and citizen of El Salvador, petitions for review of a decision of the Board of Immigration Appeals (“BIA”), finding that his appeal from a removal order of an Immigration Judge (“IJ”) was * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. withdrawn pursuant to 8 C.F.R. § 1003.4.1 We have jurisdiction under 8 U.S.C. § 1252. We grant the petition and remand. Waiver of the right to appeal a removal order must be “considered” and “intelligent.” Chavez-Garcia v. Sessions, 871 F.3d 991, 996 (9th Cir. 2017) (quoting United States v. Mendoza-Lopez, 481 U.S. 828, 840 (1987)). The applicant must therefore be informed that departure from the country would waive the right to appeal. Id. at 997-98. Although Chavez-Garcia dealt with 8 C.F.R. § 1003.3(e), which provides for “waiver” of the right to appeal when a petitioner departs the country before appealing the order of an IJ to the BIA, there is no material difference between the “waiver” and “withdrawal” of an appeal through departure. When an appeal is withdrawn, the decision of the IJ is “final to the same extent as though no appeal had been taken.” 8 C.F.R. § 1003.4. The government presented no evidence that Castillo knew departure would 1 The regulation provides: Departure from the United States of a person who is the subject of deportation or removal proceedings, except for arriving aliens as defined in § 1001.1(q) of this chapter, subsequent to the taking of an appeal, but prior to a decision thereon, shall constitute a withdrawal of the appeal, and the initial decision in the case shall be final to the same extent as though no appeal had been taken. 8 C.F.R. § 1003.4. 2 result in the withdrawal his appeal, and the BIA made no such finding.2 Nor is there clear and convincing evidence in the record that Castillo knew of this consequence before his alleged departure. See Chavez-Garcia, 871 F.3d at 997 (holding that there must be “clear and convincing evidence” of waiver) (citing United States v. Gomez, 757 F.3d 885, 894 (9th Cir. 2014)).3 PETITION FOR REVIEW GRANTED; REMANDED. 2 Castillo relied on Chavez-Garcia in a supplemental filing to the BIA, which addressed that opinion in its decision. See Parada v. Sessions, 902 F.3d 901, 914 (9th Cir. 2018) (“It is well-established that we may review any issue addressed on the merits by the BIA, regardless of whether the petitioner raised it before the agency.”). 3 Because we grant the petition on this ground, we ...
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