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Lopez-Angel v. Barr

United States Court of Appeals, Ninth Circuit

December 27, 2019

Silvano Lopez-Angel, Petitioner,
v.
William P. Barr, Attorney General, Respondent.

          Argued and Submitted October 16, 2019 San Diego, California

          On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A044-076-538

          Lauren 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, Circuit Judges.

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). 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that it would completely eviscerate the statutory right to reopen if the agency deems a motion to reopen constructively withdrawn whenever the government removes a petitioner while his motion is pending.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 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.

          OPINION

          HURWITZ, Circuit Judge

         The 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.

         I. ...


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