9th Cir. Holds Post-Order Departure Did Not Waive Right to Appeal

In Chavez-Garcia v. Sessions, No. 14-72172 (9th Cir. Sept. 21, 2017), the Ninth Circuit held that the petitioner did not waive his right to appeal to the BIA when he departed from the U.S. after being ordered removed by an immigration judge.  This is noteworthy, as the federal regulations at 8 C.F.R. § 1003.3(e) clearly indicate that such a departure made prior to the filing of an appeal “shall constitute a waiver of his or her right to appeal.”

The petitioner was ordered removed by an immigration judge on January 28, 2013.  The immigration judge not only informed the petitioner of his right to appeal the decision, but further told him that his attorney would “take my decision to the next higher court and argue...that my decision was incorrect.”  However, 15 days after the removal order, the petitioner’s attorney filed a letter with DHS requesting the petitioner’s immediate removal to Mexico to see his terminally-ill mother.  The attorney added in the letter that  the petitioner did not intend to appeal the immigration judge’s decision.  In response, DHS deported the petitioner the following day.

On February 22, 2013, nine days after the petitioner was deported to Mexico (but still within the 30 day appeal period) the attorney appealed the removal order to the BIA.  The Board did not consider the merits of the arguments; instead, it found that the right to appeal had been waived when the petitioner departed the U.S. prior to filing an appeal.  Furthermore, the petitioner’s attorney had not responded to DHS’s motion for a summary dismissal of the appeal in light of the petitioner’s departure.

So then why did the circuit court grant the petition, in spite of the regulation, the petitioner being advised of his right to appeal, the attorney’s letter, and the non-response to the DHS motion to summarily dismiss?  As the court explained, “the constitutional requirements of a valid waiver of the right to appeal cannot be so lightly disregarded.”  The court continued that the Supreme Court has held that a valid waiver of the right to appeal must be “considered” and “intelligent.”  The court found that, where the petitioner had heard his attorney reserve his right to appeal, and had even been informed by the immigration judge that his attorney would appeal, the petitioner’s waiver could not be intelligent and informed without the immigration judge warning him that his departure would constitute a waiver of the right to appeal that he previously reserved.

This decision is not likely to impact a large number of people.  But the case does illustrate (in the immigration context) the tremendous respect that circuit court judges afford to constitutional protections.  While our prior commander-in-chief (who taught constitutional law for 12 years at the University of Chicago Law School) might not have needed a reminder of that point, the incumbent might wish to take note.

The decision was written by Judge Carlos Bea.  While researching an article on the 75th anniversary of the BIA, I came across a post about Judge Bea on the Stanford Law School website: https://law.stanford.edu/press/u-s-court-of-appeals-judge-carlos-bea-to-focus-on-religion-in-constitution-day-lecture-on-monday/  According to the article, Judge Bea (who was born in Spain but escaped as a child to his father’s native Cuba at the start of World War II) attended Stanford as an undergraduate, where he starred on the school’s basketball team.  While a student, he participated in the 1952 Helsinki Olympics as a member of the Cuban national basketball team.  Because he remained abroad for a year, an INS officer later labeled him a draft evader, which led to his being ordered deported.  Judge Bea appealed to the BIA, which in those days, heard multiple oral arguments five afternoons a week.  According to Bea, he “got lucky” when the BIA chairman at the time turned out to be a big basketball fan; the Board ruled in the future judge’s favor.  I can’t imagine a jurist more qualified to understand the importance of being properly informed of the consequences before departing the U.S.