and Submitted October 16, 2019 San Diego, California
Petition for Review of an Order of the Board of Immigration
Appeals Agency No. A044-076-538
Cusitello (argued), Crossroads Justice Center of San Diego,
San Diego, California, for Petitioner.
Victoria Braga (argued), Trial Attorney; Andrew N.
O'Malley, Senior Litigation Counsel; Cindy S. Ferrier,
Assistant Director; Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C.; for Respondent.
Before: Andrew D. Hurwitz, John B. Owens, and Kenneth K. Lee,
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.
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
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). 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constructively withdrawn whenever the government removes a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.
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.
Judge Lee agreed that petitioner did not withdraw his appeal,
but reached that conclusion differently. Judge Lee observed
it was unclear whether the Sixth Circuit's decision in
Madrigal was based on the regulation itself or on
constitutional concerns. In any event, Judge Lee wrote that
he did not believe that the due process concerns in
Madrigal applied here because the petitioner in
Madrigal filed a motion to stay, but the government
removed her while the stay was pending. Here, however, there
was no evidence that Lopez had moved for a stay. Because
Lopez had not done all that he could to avail himself of the
process, Judge Lee concluded that principles of fundamental
fairness would not necessarily be violated if § 1003.4
applied here. Nonetheless, Judge Lee agreed with the
majority's conclusion based on a reasonable reading of
§ 1003.4 to interpret "departure" not to
include a forcible removal.
HURWITZ, Circuit Judge
government removed Silvano Lopez-Angel to Mexico while his
appeal to the Board of Immigration Appeals ("BIA")
was pending. It now argues that Lopez withdrew the appeal
because he left the country. We cannot improve on Judge
Kethledge's description of the government's position:
"To state that argument should be to refute it[.]"
Madrigal v. Holder, 572 F.3d 239, 246 (6th Cir.
2009) (Kethledge, J., concurring). We conclude that the
removal did not withdraw Lopez's appeal and grant his
petition for review.