Gualberto Chavez-Garcia v. Jefferson Sessions

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT GUALBERTO CHAVEZ-GARCIA, AKA No. 14-72172 Ualberto Chavez, AKA Gilbert Garcia-Chavez, Agency No. Petitioner, A031-441-662 v. OPINION JEFFERSON B. SESSIONS III, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted April 4, 2017 Pasadena, California Filed September 21, 2017 Before: S. Jay Plager,* Carlos T. Bea, and John B. Owens, Circuit Judges. Opinion by Judge Bea; Dissent by Judge Owens * The Honorable S. Jay Plager, United States Circuit Judge for the U.S. Court of Appeals for the Federal Circuit, sitting by designation. 2 CHAVEZ-GARCIA V. SESSIONS SUMMARY** Immigration The panel granted Gualberto Chavez-Garcia’s petition for review of the Board of Immigration Appeals’ decision dismissing his appeal on the ground that Chavez-Garcia waived his right to appeal by departing under an order of removal, and remanded. The panel held that Chavez-Garcia’s departure from the United States, without more, did not provide clear and convincing evidence of a “considered” and “intelligent” waiver of the right to appeal, and therefore did not meet the constitutional requirements of a valid waiver. The panel further held that the immigration judge’s failure to inform Chavez-Garcia that his departure would constitute a waiver of his previously reserved right to appeal to the Board rendered his purported waiver invalid. Dissenting, Judge Owens wrote that a letter from Chavez-Garcia’s own lawyer – which asked for Chavez- Garcia’s immediate removal and stated that Chavez-Garcia did not intend to appeal the immigration judge’s decision – supports the Board’s decision to dismiss the appeal on waiver grounds. ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. CHAVEZ-GARCIA V. SESSIONS 3 COUNSEL Gowri Ramachandran (argued), Supervising Attorney; Alexandra Angel (argued), Charlie Wang (argued) Samuel Barry, and Nadejda Sokolova, Certified Law Students; Southwestern Law School, Los Angeles, California; Andrew Knapp, Immigrant Access to Justice Assistance, Los Angeles, California; for Petitioner. Elizabeth Fitzgerald-Sambou (argued) and Mona Maria Yousif, Trial Attorneys; John S. Hogan, Assistant Director; Office of Immigration Litigation, United States Department of Justice, Washington, D.C.; for Respondent. OPINION BEA, Circuit Judge: We must decide whether Gualberto Chavez-Garcia waived his right to appeal his removal order to the Board of Immigration Appeals (“BIA”) by his departure from the United States before he filed his appeal. See 8 C.F.R. § 1003.3(e) (“Departure from the United States of a person who is the subject of deportation proceedings, prior to the taking of an appeal from a decision in his or her case, shall constitute a waiver of his or her right to appeal.”). We hold that Chavez-Garcia’s departure alone did not constitute a “considered” and “intelligent” waiver of his right to appeal, and therefore did not meet the constitutional requirements of a valid waiver. FACTUAL AND PROCEDURAL BACKGROUND Gualberto Chavez-Garcia was born in Mexico in 1951 to Sabina Garcia, a United States (“U.S.”) citizen, and her 4 CHAVEZ-GARCIA V. SESSIONS ...

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