Case: 21-180, 04/18/2023, DktEntry: 35.1, Page 1 of 5 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT APR 18 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS EMILIA ROJAS-LAZARO; CLARIVET No. 21-180 SULLY HUAMAN-ROJAS, Agency Nos. Petitioners, A212-992-316 A212-992-315 v. MERRICK B. GARLAND, Attorney MEMORANDUM* General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted April 11, 2023 Seattle, Washington** Before: BYBEE and FORREST, Circuit Judges, and SEEBORG,*** District Judge. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed R. App. P. 34(a)(2). *** The Honorable Richard Seeborg, Chief United States District Judge for the Northern District of California, sitting by designation. Case: 21-180, 04/18/2023, DktEntry: 35.1, Page 2 of 5 Emilia Rojas-Lazaro and her minor daughter petition for review of the Board of Immigration Appeals’ (BIA) denial of their motion to reopen. We have jurisdiction under 8 U.S.C. § 1252 and review the BIA’s denial of a motion to reopen for abuse of discretion. Hernandez-Ortiz v. Garland, 32 F.4th 794, 800 (9th Cir. 2022). We grant the petition. The government instituted removal proceedings against the petitioners in May 2017. Rojas-Lazaro conceded removability and applied for asylum, withholding of removal, cancellation of removal, and protection under the Convention Against Torture. In March 2019, the immigration judge (IJ) held a hearing in which Rojas- Lazaro presented evidence to support her applications for immigration relief. A Spanish interpreter was present. At the conclusion of the hearing, the IJ indicated that he would not grant Rojas-Lazaro’s applications and asked whether Rojas- Lazaro would like pre-conclusion voluntary departure. To qualify for pre- conclusion voluntary departure, a noncitizen must withdraw all active applications for immigration relief and waive her right to appeal. 8 C.F.R. § 1240.26(b)(1)(i)(B), (D). After a brief recess, counsel for Rojas-Lazaro requested pre-conclusion voluntary departure on her behalf. The IJ granted 2 Case: 21-180, 04/18/2023, DktEntry: 35.1, Page 3 of 5 voluntary departure and issued an order noting that Rojas-Lazaro had withdrawn her applications for immigration relief and waived appeal. Rojas-Lazaro filed a motion to reopen, contending that she did not have the time or understanding to adequately consider the waiver of her appeal and withdrawal of her applications for relief. In conjunction with her motion, Rojas- Lazaro filed declarations from herself and her attorney explaining that Rojas- Lazaro did not understand what was happening during her hearing. According to these declarations, Rojas-Lazaro did not discover she had forfeited her applications and waived her appeal until she spoke with her attorney through an interpreter a few days after the hearing. The IJ denied the motion to reopen in a form order. Rojas-Lazaro appealed to the BIA, which affirmed the IJ’s denial. To comport with due process, a waiver of appeal must be “considered and intelligent.” United States v. Pallares-Galan, 359 F.3d 1088, 1096 …
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