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Chavez-Garcia v. Sessions

United States Court of Appeals, Ninth Circuit

September 21, 2017

Gualberto Chavez-Garcia, AKA Ualberto Chavez, AKA Gilbert Garcia-Chavez, Petitioner,
v.
Jefferson B. Sessions III, Attorney General, Respondent.

          Argued and Submitted April 4, 2017 Pasadena, California

         On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A031-441-662

          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.

          Before: S. Jay Plager, [*] Carlos T. Bea, and John B. Owens, Circuit Judges.

         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.

          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 husband, Baldomero Chavez, a Mexican citizen. At the time of Chavez-Garcia's birth, a child born outside the U.S. to a U.S. citizen, who was married to an alien, acquired U.S. citizenship upon birth if the U.S. parent had resided in the U.S. for ten years prior to the child's birth, and at least five of those years accrued after the age of sixteen. See 8 U.S.C. ยง 601(g) (1940). A child born out of wedlock and outside the U.S. to a U.S. citizen mother acquired U.S. citizenship as ...


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