George Garcia v. Loretta E. Lynch

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GEORGE CAMACHO GARCIA, No. 11-73406

Petitioner,

Agency No.

v. A070-066-192

LORETTA E. LYNCH, Attorney

General, OPINION

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

February 11, 2015—San Francisco, California

Filed May 20, 2015

Before: Michael Daly Hawkins, Richard A. Paez,

and Marsha S. Berzon, Circuit Judges.

Per Curiam Opinion;

Concurrence by Judge Berzon

2 GARCIA V. LYNCH

SUMMARY*

Immigration

The panel granted George Camacho Garcia’s petition for

review from the Board of Immigration Appeals’ decision

denying his motion for reconsideration for lack of jurisdiction

on the ground that he validly waived appeal.

The panel held that Garcia’s waiver of his right to appeal

to the BIA was not considered and intelligent, because his

decision was based upon an Immigration Judge’s incorrect

advice that his prior conviction was an aggravated felony and

that he was therefore ineligible for relief from removal. The

panel held that Garcia’s conviction for grand theft, in

violation of California Penal Code § 487(a), is not a

categorical aggravated felony because it is doubly overbroad,

where it permits a conviction for theft of labor, while the

generic definition of theft does not, and it also permits a

conviction for a consensual taking.

Concurring, Judge Berzon agreed that Garcia’s appeal

waiver was invalid because his conviction was not an

aggravated felony, but wrote separately to explain that the

BIA made a more fundamental error in concluding that it

lacked jurisdiction. Judge Berzon wrote that the regulation

governing finality upon which the BIA relied, 8 C.F.R.

§ 1003.39, is flatly inconsistent with the Immigration and

Nationality Act, 8 U.S.C. § 1101(a)(47)(B), which provides

that a deportation order is final when the BIA affirms it or the

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

GARCIA V. LYNCH 3

appeal period has expired, and further noted that the waiver

of the right to appeal is not mentioned as triggering finality.

Judge Berzon would hold that even if Garcia's waiver of

appeal were otherwise valid it would not render his removal

order final.

COUNSEL

K. Lee Hartzler, San Diego, California, for Petitioner.

Manuel Palau and Sara Bayram (argued), Department of

Justice, Civil Division, Office of Immigration Limitation,

Washington, D.C., for Respondent.

OPINION

PER CURIAM:

An Immigration Judge (“IJ”) incorrectly advised George

Camacho Garcia that his prior conviction was for an

aggravated felony, and that he was therefore ineligible for

relief from removal. Hearing that advice, Garcia waived his

appeal to the Board of Immigration Appeals (“BIA”). But the

advice was wrong. As a result, Garcia’s waiver of his right

to appeal to the BIA was not considered and intelligent, and

the BIA should have granted Garcia’s motion for

reconsideration.

I.

Garcia, a native and citizen of the Philippines, became a

lawful permanent resident in 2004 based on his marriage to

4 GARCIA V. LYNCH

a U.S. citizen. In 2009, he pleaded guilty to four charges in

California state court, including a violation of California

Penal Code § 487(a), and was duly convicted. The

corresponding count in the complaint alleged that: “George

Camacho Garcia did willfully and unlawfully take money or

personal property of a value exceeding four hundred dollars

($400).” Garcia was sentenced to one year and four months

in prison for that conviction.

In 2011, the Department of Homeland Security (“DHS”)

issued a notice to appear, charging Garcia with removability

as an alien convicted of an aggravated felony – specifically a

theft offense for which a sentence of at least one year was

imposed. See 8 U.S.C. §§ 1227(a)(2)(A)(iii); 1101(a)(43)(G).

During an initial hearing, Garcia heard a pre-recorded

message explaining the removal process, his appellate rights,

and his option to waive appeal. In an ensuing individual

colloquy with the IJ, Garcia said that he wished to proceed in

English, which was his “best language,” that he understood

his rights, and that he wanted time to obtain a lawyer. The

hearing was continued. At a subsequent hearing, Garcia told

the IJ he would proceed pro se and again confirmed that

English was his best language. Garcia had some difficulty

hearing the IJ, who asked Garcia to sit closer so he could

hear.

At the second hearing, Garcia filed written pleadings

prepared with the assistance of his current counsel, arguing

that he was not removable because his section 487(a)

conviction was not a categorical aggravated felony.

Specifically, he maintained that section 487(a) was overbroad

in two ways: It criminalized both theft of labor and also forms

of consensual but unlawful taking of property, such as false

pretenses, neither of which is included in the generic

GARCIA V. LYNCH 5

definition of theft. After DHS filed copies of the abstract of

judgment and complaint from his criminal case, the IJ

concluded that Garcia’s section 487(a) conviction was an

aggravated felony. Looking to the complaint, the IJ held that

the conviction was for “taking the money or personal

property as such,” rather than theft of labor, but did not

address Garcia’s argument regarding consensual but unlawful

taking of property. Garcia was ordered removed.

The IJ then explained that Garcia, who remained

unrepresented, had the right to appeal but could waive that

right. Garcia said he understood. When asked if he waived

appeal, Garcia responded: “I would say – so I am not eligible

for any relief?” The IJ told him he was not, explaining that,

despite Garcia’s marriage to a U.S. citizen, he would need a

waiver to adjust his status again, but, given his conviction, he

was ineligible for any waiver. The IJ then again confirmed

that Garcia understood his options regarding appeal. Garcia

said he did, and then stated – three times – that he agreed to

waive his right to appeal.1

Garcia nevertheless filed a pro se notice of appeal with

the BIA, attaching, as his statement of reasons, a copy of his

previously filed written pleadings and an argument that his

conviction was not an aggravated felony. The BIA dismissed

the appeal, noting that Garcia had waived it and holding that,

as Garcia had “made no argument that the decision to waive

appeal was not a knowing and intelligent one,” the IJ’s

decision was administratively final upon waiver. The case

thus was “not properly before” it, the BIA asserted.

1

In response to the IJ’s questioning to ensure Garcia really intended to

waive appeal, Garcia stated “I will not appeal no more,” “I just voluntarily

deporting myself,” and “I’m waiving my right to an appeal.”

6 GARCIA V. LYNCH

Garcia, now represented by counsel, filed a short motion

to reconsider, arguing that “at the time he waived appeal, he

was confused, had a difficult time hearing the immigration

judge, and did not make a knowing, intelligent, and voluntary

waiver of his right to appeal.”2 In an accompanying

declaration, Garcia stated that he was scared and confused

during the hearing, English was not his first language, and he

had a hard time hearing the IJ. He also said that he did not

believe his conviction was categorically an aggravated felony,

and that he would therefore like to argue for his eligibility for

cancellation of removal.

The BIA issued an opinion declining to grant

reconsideration. It noted that, although it ordinarily does not

have jurisdiction over motions when it has not assumed initial

jurisdiction over a case, it would consider the motion to

reconsider because it “challenge[d] the jurisdictional

determination in this case.” The BIA went on to reject as

inconsistent with the record the assertions in Garcia’s

declaration regarding the circumstances of the hearing,

noting: that he had told the IJ that he wanted to proceed in

English, as it was his best language; that the IJ had explained

Garcia’s appellate rights to him; that Garcia had confirmed he

had listened and understood; that the IJ had told Garcia to sit

closer to address his hearing difficulty; and that, at the end of

the proceeding, Garcia had unequivocally stated his intent to

waive appeal. The upshot, the BIA concluded, was this:

“Despite the respondent’s generalized assertions that he was

in some manner ‘confused’ about his proceedings, . . . the

record reflects that he understood he had a right to appeal, but

made a knowing and voluntary waiver of this right.”

2

Garcia styled his filing a motion to reopen, but the BIA construed it as

a motion to reconsider. Neither party challenges that construction.

GARCIA V. LYNCH 7

Whether the IJ had given proper advice when he advised

Garcia that he was ineligible for relief from removal because

of his theft conviction was not addressed in the BIA opinion.

Garcia timely petitioned for review of the BIA

reconsideration decision.

II.

We review the denial of a motion to reconsider for abuse

of discretion. Tadevosyan v. Holder, 743 F.3d 1250, 1252

(9th Cir. 2014). We will reverse such a denial “if it is

arbitrary, irrational, or contrary to law.” Yepremyan v.

Holder, 614 F.3d 1042, 1044 (9th Cir. 2010) (quoting Singh

v. I.N.S., 295 F.3d 1037, 1039 (9th Cir. 2002)) (internal

quotation marks omitted).

The BIA has held that, once the parties waive appeal, it

lacks jurisdiction if the waiver is “knowingly and intelligently

made.” In re Rodriguez-Diaz, 22 I. & N. Dec. 1320, 1322

(BIA 2000) (citing United States v. Mendoza-Lopez, 481 U.S.

828, 840 (1987)).3 As DHS recognizes, it bears the burden to

establish a valid waiver by clear and convincing evidence.

See Gomez, 757 F.3d at 893–94.

“Where ‘the record contains an inference that the

petitioner is eligible for relief from deportation,’ but the IJ

3

We note that Mendoza-Lopez indicated that an appeal waiver must be

“considered [and] intelligent” in order to satisfy due process.

Mendoza-Lopez, 481 U.S. at 840 (emphasis added); see also, e.g., United

States v. Gomez, 757 F.3d 885, 893 (9th Cir. 2014). In light of our

disposition of this case, we do not address whether this standard is

meaningfully different from the BIA’s articulation.

8 GARCIA V. LYNCH

fails to ‘advise the alien of this possibility and give him the

opportunity to develop the issue,’ we do not [regard] an

alien’s waiver of his right to appeal his deportation order [as]

‘considered and intelligent.’” United States v.

Pallares-Galan, 359 F.3d 1088, 1096 (9th Cir. 2004) (quoting

United States v. Muro-Inclan, 249 F.3d 1180, 1182 (9th Cir.

2001)) (some internal quotation marks omitted). In this case,

the IJ advised Garcia that he was not eligible for any relief

because his grand theft conviction was an aggravated felony.4

That advice was incorrect.

As an initial matter, Garcia did sufficiently exhaust this

argument. We are generally barred, “for lack of

subject-matter jurisdiction, from reaching the merits of a legal

claim not presented in administrative proceedings below.”

Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).

However, “[w]e do not employ the exhaustion doctrine in a

formalistic manner.” Ren v. Holder, 648 F.3d 1079, 1083

(9th Cir. 2011) (quoting Figueroa v. Mukasey, 543 F.3d 487,

492 (9th Cir. 2008)) (internal quotation marks omitted). “‘A

petitioner cannot satisfy the exhaustion requirement by

making a general challenge to the IJ’s decision,’” but also

“need not . . . raise the precise argument below.”

Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 873 (9th Cir.

2008) (quoting Zara v. Ashcroft, 383 F.3d 927, 930 (9th Cir.

2004)).

4

The IJ’s determination that Garcia’s conviction was an aggravated

felony played a role in two distinct issues that arose at the hearing. It was

the basis for the charge of removability which the IJ sustained, and it also

indicated to the IJ that Garcia was not eligible for relief from removal.

Only the latter issue is before us on this petition for review.

GARCIA V. LYNCH 9

Here, Garcia’s brief motion to reconsider and

accompanying declaration argued that Garcia “did not make

a knowing, intelligent, and voluntary waiver of his right to

appeal,” reiterated the argument made before the IJ and in the

notice of appeal that the conviction was not an aggravated

felony, and asserted that, therefore, Garcia was potentially

eligible for relief from removal. Garcia did not spell out in so

many words that his waiver should be deemed invalid

because the IJ incorrectly concluded that his conviction was

an aggravated felony and so failed to advise him of potential

relief from removal. But Garcia did articulate each essential

part of the contention he now raises. As a result, that “issue

was before the BIA such that it had the opportunity to correct

its error.” Figueroa, 543 F.3d at 492. “Our precedent

requires nothing more.” Id. (brackets and internal quotation

marks omitted).

Garcia’s declaration indicated that, absent an aggravated

felony, he was potentially eligible for cancellation of

removal, 8 U.S.C. § 1229b, while on appeal Garcia has

argued that, absent an aggravated felony, he was potentially

eligible to readjust his status with an 8 U.S.C.

§ 1182(h)(1)(B) waiver. But that difference is immaterial for

present purposes. DHS has made no argument, apart from its

contention that his conviction was an aggravated felony, as to

the merits of either form of relief, nor has it suggested that

the difference between them should matter for exhaustion

purposes. Indeed, Garcia may have been eligible for both.5

5

Nothing in the record before the IJ negates Garcia’s apparent

eligibility, absent an aggravated felony, for both forms of relief from

removal. See United States v. Lopez-Velasquez, 629 F.3d 894, 896 (9th

Cir. 2010) (en banc) (holding that apparent eligibility exists where the

record “raises a reasonable possibility that the petitioner may be eligible

10 GARCIA V. LYNCH

In sum, Garcia sufficiently exhausted the issue we decide:

that his waiver was invalid because the IJ incorrectly advised

him that his conviction was an aggravated felony and that, for

that reason, he was ineligible for relief from removal.

On the merits, we agree with Garcia that his conviction

was not an aggravated felony. “In making a determination as

for relief”) (internal quotation mark omitted). Garcia would have been

eligible for cancellation of removal upon a showing that he “(1) ha[d] been

an alien lawfully admitted for permanent residence for not less than 5

years, [and] (2) ha[d] resided in the United States continuously for 7 years

after having been admitted in any status.” 8 U.S.C. § 1229b(a). At the

time of his removal proceedings, Garcia had been a permanent resident for

well over five years. See Padilla-Romero v. Holder, 611 F.3d 1011, 1012,

1014 (9th Cir. 2010). Although the record is somewhat unclear on this

point, it appears that Garcia had also continuously resided in the United

States for seven years prior to committing the offense for which he was

held removable, see 8 U.S.C. § 1229b(d)(1), having been admitted in a

nonimmigrant status as early as 1996. Similarly, Garcia was apparently

eligible for a waiver under § 1182(h)(1)(B) in conjunction with an

application to adjust his status again. See Matter of Rivas, 26 I. & N. Dec.

130, 132–33 (BIA 2013). For the § 1182(h)(1)(B) waiver, Garcia would

need to show “extreme hardship to [his] United States citizen or lawfully

resident spouse, parent, son, or daughter.” 8 U.S.C. § 1182(h)(1)(B). The

record indicates that Garcia was, at least at one point, married to a U.S.

citizen, but the IJ did not further develop the record as to the status of

Garcia’s relationship or any potential extreme hardship, because of his

conclusion that Garcia had been convicted of an aggravated felony. Cf.

United States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir. 2000). Finally,

Garcia was apparently eligible to again adjust his status, assuming that he

was, indeed, still married to the U.S. citizen. See In re Mendez-Moralez,

21 I. & N. Dec. 296, 297-98 (BIA 1996); Agyeman v. I.N.S., 296 F.3d 871,

878 (9th Cir. 2002). Insofar as there are gaps in the record regarding

Garcia’s eligibility for relief, the evident reason is that the IJ truncated any

inquiry into Garcia’s precise circumstances by ruling that, whatever those

circumstances were, Garcia had been convicted of an aggravated felony

and so was ineligible for relief.

GARCIA V. LYNCH 11

to whether a prior conviction qualifies as an aggravated

felony for federal deportation purposes, we employ the

analytical model set forth in Taylor v. United States, 495 U.S.

575 [(1990)].” Pallares-Galan, 359 F.3d at 1099.

Under Taylor’s categorical approach, the issue

is not whether the actual conduct constituted

an aggravated felony, but whether the full

range of conduct encompassed by the state

statute constitutes an aggravated felony, and

we look only to the fact of conviction and the

statutory definition of the prior offense to

make this determination. If we determine that

the statute which the defendant was found to

have violated is broader in scope than the

federal provision—that the state statute

proscribes not only conduct that would

constitute an aggravated felony but also

conduct that would not—then the state

conviction may not be used, except under a

modified categorical approach. Under the

modified categorical approach, the conviction

may be used only if the record contains

documentation or judicially noticeable facts

that clearly establish that the conviction is a

predicate conviction.

Id. (brackets, citations, and internal quotation marks omitted).

As was clear at the time of Garcia’s hearing, a conviction

under California Penal Code § 487(a) is not categorically an

aggravated felony because, as Garcia argues, section 487(a)

12 GARCIA V. LYNCH

is doubly overbroad.6 First, it permits a conviction for theft

of labor, while the generic definition of theft does not. See

United States v. Espinoza-Cano, 456 F.3d 1126, 1131 (9th

Cir. 2006). Second, section 487(a) incorporates the general

definition of theft, which is found at California Penal Code

§ 484(a).7 An individual may be convicted of theft under

section 484(a), and therefore grand theft under section 487(a),

even if the victim consented to transfer his property. For

example, the California statutes cover deprivation of property

by false pretenses, which does not constitute theft under the

generic definition. See Carrillo-Jaime v. Holder, 572 F.3d

747, 751–53 (9th Cir. 2009). Under that definition, theft is

“[1] a taking of property or an exercise of control over

6

The version of the statute in effect at the time of Garcia’s conviction

provided, in relevant part, “Grand theft is theft committed in any of the

following cases: (a) When the money, labor, or real or personal property

taken is of a value exceeding four hundred dollars ($400) . . .” Cal. Penal

Code § 487 (2009). The statute has since been amended to raise the value

establishing grand theft to $950. See Cal. Penal Code § 487(a) (2014).

7

“[Section] 484(a) defines theft in general,” while “[s]ection 487 . . .

describes certain circumstances in which theft will constitute grand theft.”

United States v. Corona-Sanchez, 291 F.3d 1201, 1206–07 (9th Cir. 2002)

(en banc), superseded by statute on other grounds as recognized in United

States v. Gomez-Mendez, 486 F.3d 599, 604–05 (9th Cir. 2007) (footnote

omitted). Section 484(a) provides, in relevant part, “Every person who

shall feloniously steal, take, carry, lead, or drive away the personal

property of another, or who shall fraudulently appropriate property which

has been entrusted to him or her, or who shall knowingly and designedly,

by any false or fraudulent representation or pretense, defraud any other

person of money, labor or real or personal property, or who causes or

procures others to report falsely of his or her wealth or mercantile

character and by thus imposing upon any person, obtains credit and

thereby fraudulently gets or obtains possession of money, or property or

obtains the labor or service of another, is guilty of theft.” Cal. Penal Code

§ 484(a).

GARCIA V. LYNCH 13

property [2] without consent [3] with the criminal intent to

deprive the owner of rights and benefits of ownership, even

if such deprivation is less than total or permanent.” Id. at 750

(alterations in original) (emphasis added) (quoting

Corona-Sanchez, 291 F.3d at 1205) (internal quotation marks

omitted).

The IJ nevertheless found that the conviction was an

aggravated felony, applying the modified categorical

approach. In doing so, he addressed only the first type of

overbreadth, not whether the conviction was for a consensual

or non-consensual taking.

The modified categorical approach does not establish that

Garcia was convicted of a non-consensual taking. “In the

context of a guilty plea, the modified categorical approach

inquires whether a guilty plea to an offense defined by a

nongeneric statute necessarily admitted elements of the

generic offense.” Alvarado v. Holder, 759 F.3d 1121, 1130

(9th Cir. 2014) (internal quotation marks omitted). Nothing

in the conviction documents in the record – namely, the

abstract of judgment and criminal complaint – establishes that

Garcia’s conviction was for non-consensual grand theft.8

The complaint charged that Garcia “did willfully and

unlawfully take money or personal property.” As the

California Supreme Court recently reiterated, in 1927 the

California legislature consolidated the crimes previously

known as larceny, false pretenses, and embezzlement,

8

As the question of divisibility was not raised in the briefs and oral

argument, and because we reverse on other grounds, we assume for the

purposes of this opinion, without deciding, that sections 487(a) and 484(a)

are divisible. See Rendon v. Holder, 764 F.3d 1077, 1085 (9th Cir. 2014).

14 GARCIA V. LYNCH

inherited from English common and statutory law, into what

is now section 484(a). People v. Williams, 57 Cal. 4th 776,

785 (2013). One distinction among these crimes was that

larceny required “a ‘trespassory taking,’ which is a taking

without the property owner’s consent,” while false pretenses,

for example, “involves the consensual transfer of possession

as well as title of property.” Id. at 788 (emphases omitted);

see also Carrillo-Jaime, 572 F.3d at 752. This change

affected the wording of charging documents:

“The purpose of the consolidation was to

remove the technicalities that existed in the

pleading and proof of these crimes at common

law. Indictments and informations charging

the crime of ‘theft’ can now simply allege an

‘unlawful taking.’ . . . Juries need no longer

be concerned with the technical differences

between the several types of theft, and can

return a general verdict of guilty if they find

that an ‘unlawful taking’ has been proved. . . .

The elements of the several types of theft

included within section 484 have not been

changed, however, and a judgment of

conviction of theft, based on a general verdict

of guilty, can be sustained only if the evidence

discloses the elements of one of the

consolidated offenses.”

Williams, 57 Cal. 4th at 785–86 (emphasis added) (quoting

People v. Ashley, 42 Cal. 2d 246, 258 (1954)). In other

words, the allegation in the complaint in this case, that Garcia

did “unlawfully take” property, charges theft in violation of

section 484(a), without further indicating which of “the

several types of theft” is specifically charged. Id. Thus, the

GARCIA V. LYNCH 15

allegations in the complaint do not establish that Garcia was

charged and convicted of non-consensual theft, namely

larceny, rather than consensual but unlawful taking of

property, such as by false pretenses.

United States v. Rivera, 658 F.3d 1073 (9th Cir. 2011), is

not to the contrary. In Rivera, we concluded that the

defendant’s plea to a charge that he “did unlawfully . . . steal

take and carry away” personal property narrowed the

conviction to the generic limits, namely a non-consensual

taking. Id. at 1077–78. Although the charge in Rivera did

not expressly indicate that the theft was non-consensual, its

language closely tracked the portion of section 484(a) that

“reflects” the common-law crime of larceny: “the felonious

stealing, taking, carrying, leading, or driving away of the

personal property of another.” Williams, 57 Cal. 4th at

781–82. Here, by contrast, the charging language is fully

consistent with non-consensual theories of guilt under section

484(a). See id. at 785–86.

DHS points to language in a different count of the

complaint, of which Garcia was not convicted, charging

Garcia with using the same victim’s personally identifying

information without her authorization. The most likely

reading of the complaint, DHS suggests, is that the two

counts are based upon the same conduct and that, therefore,

the theft was without consent. That possible inference,

however, is insufficient to establish that Garcia was convicted

of generic theft. Alvarado, 759 F.3d at 1131.

For one thing, the taking of different property from the

same victim could be covered in a single complaint. For

another, Garcia was not convicted of the “without

authorization” count, a circumstance that could indicate he

16 GARCIA V. LYNCH

was unwilling to plead guilty to taking the property without

authorization or that the prosecution was not confident it

could prove that element. So, although one perhaps could

infer that the two counts arose from the same conduct, such

an inference is in no way compelled. As we held in

Alvarado, 759 F.3d at 1131, a bare inference of this sort does

not satisfy the modified categorical approach.

In sum, the IJ “believed, incorrectly, that [Garcia’s]

conviction . . . constituted a[n] . . . aggravated felony,” and so

“erred when []he told [Garcia] that no relief was available”

for that reason. Pallares-Galan, 359 F.3d at 1096. In light of

the IJ’s error, Garcia’s “waiver of his right to appeal was not

considered and intelligent.” Id. (internal quotation marks

omitted). It follows that the BIA’s denial of the motion to

reconsider was contrary to law and so an abuse of discretion.

Yepremyan, 614 F.3d at 1044.9

Petition GRANTED and REMANDED.

BERZON, Circuit Judge, concurring:

I join the per curiam opinion, as I entirely agree that

George Camacho Garcia’s appeal waiver was invalid because

his conviction was not an aggravated felony. I write

separately to explain an additional, more fundamental

problem with the Board of Immigration Appeal’s (“BIA”)

decisions in this case: In my view, the regulation upon which

the BIA relied for its conclusion that it lacked jurisdiction is

9

Because we grant the petition on this basis, we do not reach Garcia’s

other contentions.

GARCIA V. LYNCH 17

flatly inconsistent with the Immigration and Nationality Act

(“INA”).

Routinely, when an Immigration Judge (“IJ”) renders a

decision, he asks the respondent and the Department of

Homeland Security (“DHS”) to decide, then and there,

whether to reserve or waive the right to appeal. See In re

Rodriguez-Diaz, 22 I. & N. Dec. 1320, 1323 n.2 (BIA 2000)

(advising IJs to inform respondents: “If you want to appeal

my decision, or if you want to think about appeal and decide

later, you must reserve appeal now.”). If the parties both

waive appeal, and the waiver is otherwise valid, then, the BIA

maintains, it “do[es] not have jurisdiction over the decision of

[the] Immigration Judge.” Id. at 1322 (citing Matter of Shih,

20 I. & N. Dec. 697 (BIA 1993)).1 That is so, the BIA says,

because “[w]henever the right to appeal is [validly] waived,

the decision of the Immigration Judge becomes final and may

be implemented immediately.” Id.; see also Shih, 20 I. & N.

Dec. at 699 (holding that, “[b]ecause the immigration judge’s

decision is final [upon appeal waiver], the applicant’s

subsequent attempt to withdraw his waiver by filing a Notice

of Appeal . . . has no effect” and the BIA therefore “lacks

jurisdiction to adjudicate the case.”).2

1

As the per curiam opinion notes, the BIA does require that “any waiver

be knowingly and intelligently made.” Rodriguez-Diaz, 22 I. & N. Dec.

at 1322.

2

Aside from the concerns discussed in the text, it is dubious whether the

appeal-waiver rule properly goes to the BIA’s jurisdiction for two reasons.

First, the Supreme Court has rejected “a reflexive extension to agencies

of the very real division between the jurisdictional and nonjurisdictional

that is applicable to courts.” City of Arlington, Tex. v. F.C.C., 133 S. Ct.

1863, 1868 (2013). The analogy to the jurisdiction of courts – that is, to

“the question whether [a court has] the power to decide at all,” id.

18 GARCIA V. LYNCH

To establish that an IJ’s decision is final once appeal has

been validly waived, both Rodriguez-Diaz and Shih cited to

former regulations to that effect. The regulations have been

reorganized since then, but the current regulations say the

same thing: An IJ’s decision “becomes final upon waiver of

appeal or upon expiration of the time to appeal if no appeal is

taken[,] whichever occurs first.” 8 C.F.R. § 1003.39 (2014);

see also 8 C.F.R. § 1241.1(b) (2014) (one of several

(emphasis omitted) – is particularly inapt where, as here, the agency

disclaims authority based only on its own regulation. “Rules of

jurisdiction in a sense speak from a position outside the court system and

prescribe the authority of the courts within the system.” Black’s Law

Dictionary 980 (10th ed. 2014) (quoting Fleming James Jr., Geoffrey C.

Hazard Jr. & John Leubsdorf, Civil Procedure § 2.1, at 55 (5th ed. 2001))

(internal quotation mark omitted). By contrast, a BIA regulation, at least

one that does not purport to interpret a statute, is, in effect, the Attorney

General telling himself what he may or may not do; presumably, he could

simply change the rules if he were so inclined. That being the case, such

regulations are more like a court’s internal rules, such as our own standing

orders, than external constraints that could properly be conceived of as

jurisdictional.

Second, even if a regulation could be jurisdictional, the appeal-waiver

rule would not so qualify. See Irigoyen-Briones v. Holder, 644 F.3d 943,

949 (9th Cir. 2011) (holding that the 30-day deadline to file a notice of

appeal with the BIA was not jurisdictional). The Supreme Court has

“urged that a rule should not be referred to as jurisdictional unless it

governs a court’s adjudicatory capacity, that is, its subject-matter or

personal jurisdiction.” Henderson ex rel. Henderson v. Shinseki, 131 S.

Ct. 1197, 1202 (2011). “Among the types of rules that should not be

described as jurisdictional are . . . ‘claim-processing rules’ . . . that seek

to promote the orderly progress of litigation by requiring that the parties

take certain procedural steps at certain specified times.” Id. at 1203. A

requirement that parties must affirmatively reserve appeal at the hearing

is a “quintessential claim-processing rule[].” Id.

GARCIA V. LYNCH 19

conditions upon which an order of removal becomes final is

“waiver of appeal by the respondent”).3

In this case, the BIA concluded that it had no jurisdiction

because Garcia validly waived appeal. “[T]he Immigration

Judge’s decision became administratively final upon the

respondent’s waiver of the right to appeal,” the BIA held, and

so the case was “not properly before” it. It cited section

1003.39, Rodriguez-Diaz and Shih.4 The BIA reaffirmed its

conclusion that it lacked jurisdiction in its decision denying

the motion to reconsider.

The problem with this reasoning – aside from the

invalidity of the waiver, for the reasons covered in the per

curiam opinion – is that the regulation governing finality,

8 C.F.R. § 1003.39, on which the BIA relied, is flatly

inconsistent with the INA, the governing statute.5 8 U.S.C.

3

Rodriguez-Diaz and Shih relied principally on 8 C.F.R. § 3.39 (2000

and 1993, respectively). Current 8 C.F.R. § 1003.39 (2014) contains

identical language.

4

The BIA also cited the last sentence of 8 C.F.R. § 1003.3(a)(1), which

provides that “[a] Notice of Appeal may not be filed by any party who has

waived appeal pursuant to § 1003.39.”

5

We have jurisdiction to consider Garcia’s argument on this point.

Unlike in Stone v. I.N.S., 514 U.S. 386 (1995), Garcia is not asking us to

reverse or vacate the earlier decision, as to which he did not petition for

review. Instead, he petitioned for review of, and directly challenges, only

the denial of his motion to reconsider. The BIA’s original jurisdictional

holding was the necessary predicate to its opinion denying the motion to

reconsider. “A motion to reconsider necessarily reaches the prior decision

because it must specify the errors of fact or law in the prior Board

decision.” Toufighi v. Mukasey, 538 F.3d 988, 996 (9th Cir. 2008)

(alteration and internal quotation marks omitted). “[A] petitioner who

20 GARCIA V. LYNCH

§ 1101(a)(47)(B) provides that an “order of deportation”

“shall become final upon the earlier of (i) a determination by

the Board of Immigration Appeals affirming such order; or

(ii) the expiration of the period in which the alien is permitted

to seek review of such order by the Board of Immigration

Appeals.” Id. The definition also applies to an order of

removal, such as the one at issue in this case. See Ocampo v.

Holder, 629 F.3d 923, 927 (9th Cir. 2010) (citing Singh v.

Gonzales, 499 F.3d 969, 979 (9th Cir. 2007)). So, according

to the INA’s terms, there are two events which can trigger the

finality of a removal order – a BIA affirmance or the running

of the appeal period. The waiver of the right to appeal is not

mentioned as triggering finality.

Ocampo held 8 C.F.R. § 1241.1(f), which provides for the

finality, under several circumstances, of an alternate removal

order issued in connection with a grant of voluntary

departure, to be inconsistent with section 1101(a)(47)(B) and

only seeks review of a BIA order on reconsideration foregoes any more

favorable standard of review that might have applied had the petitioner

sought review of the BIA’s underlying decision on the merits,” but

“without some appraisal of the underlying merits, it would not be possible

for an appellate court to evaluate whether the BIA abused its discretion in

denying a motion to reconsider the merits.” Castro v. Attorney Gen. of

U.S., 671 F.3d 356, 364–65 (3d Cir. 2012); see also Narine v. Holder,

559 F.3d 246, 251 (4th Cir. 2009); Esenwah v. Ashcroft, 378 F.3d 763,

764 (8th Cir. 2004). Moreover, although Garcia did not exhaust his

challenge to the appeal-waiver regulation, “[b]ecause the BIA has no

authority to declare a regulation invalid, ‘the exhaustion doctrine does not

bar review of a question concerning the validity of [a governing]

regulation because of a conflict with a statute.’” Coyt v. Holder, 593 F.3d

902, 905 (9th Cir. 2010) (quoting Espinoza-Gutierrez v. Smith, 94 F.3d

1270, 1273–74 (9th Cir. 1996)).

GARCIA V. LYNCH 21

therefore invalid.6 The statutory definition of finality, we

said, was “clear and unambiguous that removal orders

become final only in these two circumstances, so there [wa]s

no need to resort to” a regulation providing a third alternative

“for clarification.” Ocampo, 629 F.3d at 927. Applying the

regulation’s third alternative to trigger finality in the face of

the statutory definition would, Ocampo held, violate the rule

that “‘[a] regulation may not serve to amend a statute, nor add

to the statute something which is not there,’” by “effectively

amending 8 U.S.C. § 1101(a)(47)(B) to afford an additional

circumstance when removal orders become final that is not

expressed in the statute.” Id. (quoting Cal. Cosmetology

Coal. v. Riley, 110 F.3d 1454, 1460 (9th Cir. 1997)).

As noted above, one of the other subsections of that same

regulation, 8 C.F.R. § 1241.1(b), provides that a removal

order becomes final “[u]pon waiver of appeal by the

respondent.” Id. The BIA in this case relied on the

equivalent language of 8 C.F.R. § 1003.39, which provides

that “the decision of the Immigration Judge becomes final

upon waiver of appeal.” Id. Ocampo’s reasoning applies

equally to each of these provisions. Each is inconsistent with

the “clear and unambiguous” statutory definition of finality,

6

8 C.F.R. § 1241.1 provides, in relevant part: “An order of removal

made by the immigration judge at the conclusion of proceedings under

section 240 of the Act shall become final . . . (f) If an immigration judge

issues an alternate order of removal in connection with a grant of

voluntary departure, upon overstay of the voluntary departure period, or

upon the failure to post a required voluntary departure bond within 5

business days. If the respondent has filed a timely appeal with the Board,

the order shall become final upon an order of removal by the Board or the

Attorney General, or upon overstay of the voluntary departure period

granted or reinstated by the Board or the Attorney General.”

22 GARCIA V. LYNCH

Ocampo, 629 F.3d at 927, as each adds a finality trigger that

does not appear in the statute.

Congress, I recognize, did not specify in what “period” a

noncitizen would be “permitted to seek review.” 8 U.S.C.

§ 1101(a)(47)(B)(ii). But the statutory provision

unambiguously refers to some “period,” that is, some time

span with ascertainable starting and ending dates. Consistent

with the express congressional directive to “issue regulations

with respect to . . . the time period for the filing of

administrative appeals in deportation proceedings,”

Immigration Act of 1990, Pub. L. No. 101-649, § 545(d)(2),

104 Stat. 4978, 5066 (1990) (emphasis added), the

regulations provide that the notice of appeal must be filed

within 30 days from the issuance of the IJ’s decision.

8 C.F.R. § 1003.38(b). In other words, the “period in which

the alien is permitted to seek review,” 8 U.S.C.

§ 1101(a)(47)(B)(ii), is defined by the regulation: 30 days. At

the expiration of that period, not earlier, the order becomes

final unless there has been an appeal.

DHS maintains before us that the term “is permitted” in

the statute is sufficiently ambiguous to admit of the

regulatory provision for finality upon waiver of appeal, or

failure to reserve appeal, immediately after the IJ’s decision

is announced. I discern no such ambiguity. The statute

requires that there be some period of time “permitted” in

which a noncitizen may seek review before the BIA. There

is no reasonable construction of the statutory language

allowing a noncitizen no time to seek review, but instead

asking him to declare his intention regarding appeal

immediately upon issuance of the IJ’s opinion.

GARCIA V. LYNCH 23

DHS also argues that 8 U.S.C. § 1101(a)(47) simply

speaks to a different question than do the regulations –

namely, finality for the purposes of judicial review, rather

than finality for the purposes of appeal to the BIA. It points

out that this statutory subsection was added as part of section

440 of the Antiterrorism and Effective Death Penalty Act of

1996. Section 440(a) precludes judicial review of “[a]ny final

order of deportation” based on certain criminal offenses, and

is immediately followed by section 440(b), which provides

the definition of “final order of deportation” codified at

8 U.S.C. § 1101(a)(47). Pub. L. No. 104-32, 110 Stat. 1214.

This statutory context, the government contends, indicates

that Congress defined finality only for purposes of judicial

review.

Contrary to DHS’s inventive argument, however, we have

applied the statutory definition of finality outside the context

of judicial review. See Ocampo, 629 F.3d at 926–27;

Alali-Amin v. Mukasey, 523 F.3d 1039, 1041–42 (9th Cir.

2008). Ocampo, for example, applied the definition to the

question whether a motion to reopen was timely filed with the

BIA; finality for the purposes of judicial review was not at

issue in that case. See Ocampo, 629 F.3d at 926–27.

I recognize that holding the regulation at issue here

invalid would have some troubling implications: A detained

noncitizen who really does wish to waive appeal so he can be

removed as soon as possible may instead be required to

remain in detention for 30 days until the time to appeal has

expired. See 8 U.S.C. § 1231(a)(1) (DHS shall remove a

noncitizen who has been ordered removed with the “removal

period,” which begins, as relevant here, when “the order of

removal becomes administratively final”); but see 8 C.F.R.

§ 241.7 (DHS may “permit an alien ordered removed . . . to

24 GARCIA V. LYNCH

depart at his or her own expense to a destination of his or her

own choice.”).

But there are countervailing considerations as well. Most

notably, the appeal waiver system in immigration court raises

some troubling due process concerns. Noncitizens – often

unrepresented – are asked during the course of the hearing to

make a binding decision whether to pursue an appeal. This

in-the-moment procedure is not at all how appeal waivers are

obtained in other contexts. In federal criminal cases, for

example, this court has permitted appeal waivers as part of

plea bargains in reliance, in part, on the defendant having

sufficient time to consider the matter. See, e.g., United States

v. Morris, 633 F.3d 885, 888–89 (9th Cir. 2011) (holding that

the government’s “take it or leave it plea offer,” including a

plea waiver, did not violate due process because the

defendant had “several weeks to consider the offer,” and this

“timeframe [was] not problematic”).

It may well be that due process requires time to think and

consult with counsel before appeal rights can be validly

waived. Indeed, the Supreme Court has indicated that such

waivers must be “considered.” United States v.

Mendoza-Lopez, 481 U.S. 828, 840 (1987). This case

illustrates the importance of such time to think and consult.

Garcia consistently sought to challenge the basis of his

removal proceedings, asking for time to obtain an attorney,

filing written pleadings including legal arguments that his

conviction was not an aggravated felony, and, ultimately,

filing an appeal. Although the record suggests that he

understood the choice before him regarding the appeal, there

is good reason to think that he made a spur-of-the-moment

decision, in the heat of an intimidating hearing at which he

was told he had no hope for relief. It is most likely, given his

GARCIA V. LYNCH 25

actions before and after the hearing, that Garcia would not

have made that decision had he been afforded time to

consider the choice in light of the IJ’s decision, and to consult

counsel. Although, under our precedents, his waiver was not

valid because of the IJ’s improper advice regarding relief,

even had the advice been correct, I would be troubled by the

pressure brought to bear upon him, an unrepresented

individual, to make such a weighty decision without even a

night to sleep on it.

Furthermore, again unlike appeal waivers in plea

bargains, it is not clear there is any quid pro quo for the type

of waiver that was sought here. Unless the noncitizen is

detained and seeking a swift removal, it is hard to see what he

gets in return for his waiver. In federal criminal cases, by

contrast, plea agreements, including appeal waivers, are

“contractual in nature.” United States v. Jeronimo, 398 F.3d

1149, 1153 (9th Cir. 2005), overruled on other grounds by

United States v. Jacobo Castillo, 496 F.3d 947, 957 (9th Cir.

2007) (en banc).

Accepting Garcia’s argument that the regulations are

inconsistent with the INA would avoid these constitutional

concerns. The due process concerns might also be addressed

by adding some protections to the waiver process, including

some lapse of time from the IJ’s decision, accompanied by

advice to consult counsel before deciding whether to waive

appeal. With such additions to the waiver process, it is

possible that, as a prudential, discretionary matter, the BIA

could decline to consider an appeal because of a waiver. But

whether the BIA could, with such protections, be permitted

to choose not to hear an appeal is a very different question

from whether it is barred from doing so, as the BIA held in

26 GARCIA V. LYNCH

this case. Cf. Singh v. Holder, 771 F.3d 647, 653 (9th Cir.

2014).

In sum, I would hold, in the alternative, that, even if

Garcia’s waiver of appeal were otherwise valid, that waiver

would not render Garcia’s removal order final. For that

reason as well, the BIA abused its discretion in not

reconsidering its holding that it lacked jurisdiction over this

case.