FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT SILVANO LOPEZ-ANGEL, No. 16-72246 Petitioner, Agency No. v. A044-076-538 WILLIAM P. BARR, Attorney General, OPINION Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted October 16, 2019 San Diego, California Filed December 27, 2019 Before: Andrew D. Hurwitz, John B. Owens, and Kenneth K. Lee, Circuit Judges. Opinion by Judge Hurwitz; Concurrence by Judge Lee 2 LOPEZ-ANGEL V. BARR SUMMARY * Immigration The panel granted Silvano Lopez-Angel’s petition for review of a decision of the Board of Immigration Appeals, and remanded, holding that Lopez’s removal from the United States while his appeal was pending before the BIA did not withdraw his appeal under 8 C.F.R. § 1003.4. The panel observed that the withdrawal sanction in § 1003.4 is triggered by an alien’s “departure,” from this country, but the regulation does not distinguish between volitional and non-volitional departures. The panel also noted that the BIA has recognized that an unlawful removal does not a constitute a § 1003.4 departure, but has not addressed whether a lawful removal would withdraw an appeal. However, in Madrigal v. Holder, 572 F.3d 239 (6th Cir. 2009), the Sixth Circuit held that § 1003.4 applies only when the right to appeal is relinquished by the alien’s own volitional conduct, not solely that of the government. The panel agreed, concluding that the analysis in Madrigal is consistent with this court’s interpretation of a similar regulation, 8 C.F.R. § 1003.2(d), which states that any departure after the filing a motion to reopen or reconsider constitutes a withdrawal of such motion. In Coyt v. Holder, 593 F.3d 902 (9th Cir. 2010), this court held that involuntary removal of a petitioner while a motion to reopen was pending did not withdraw the motion under § 1003.2(d). * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. LOPEZ-ANGEL V. BARR 3 Rather, the court reasoned that it would completely eviscerate the statutory right to reopen if the agency deems a motion to reopen constructively withdrawn whenever the government removes a petitioner while his motion is pending. Likewise, the panel here concluded that the statutory right to file an appeal would be undermined if the government could simply terminate an appeal by removing the petitioner. Accordingly, the panel held that § 1003.4 provides for withdrawal only when the petitioner engaged in conduct that establishes a waiver of the right to appeal. Addressing whether Lopez otherwise waived his right to appeal, the panel concluded that there was no evidence that he voluntarily left the country; rather, the record established that the government removed him. The panel therefore held that Lopez did not withdraw his appeal and granted the petition for review so that the BIA could reinstate his appeal. Concurring, Judge Lee agreed that petitioner did not withdraw his appeal, but reached that conclusion differently. Judge Lee observed it ...
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