Lopez-Angel v. Barr, No. 16-72246 (9th Cir. 2020)
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The Ninth Circuit filed an order granting the government's motion to amend, and an amended opinion granting a petition for review of the BIA's decision and remanding. The panel wrote that the withdrawal sanction in 8 U.S.C. 1003.4 is triggered by an alien's "departure," from this country and that the regulation does not distinguish between volitional and non-volitional departures. The panel noted that the BIA has recognized that an unlawful removal does not a constitute a section 1003.4 departure, but has not addressed whether a lawful removal would withdraw an appeal.
In the amended opinion, the panel held that an alien does not withdraw his appeal of a final removal order, including the appeal of the denial of a motion to reopen or reconsider, simply because he was involuntarily removed before the appeal was decided. Rather, the panel held that section 1003.4 provides for withdrawal only when the petitioner engaged in conduct that establishes a waiver of the right to appeal. In this case, petitioner did not withdraw his appeal of the denial of his motions to reopen and reconsider when he was involuntarily removed from the United States.
Court Description: Immigration. The panel filed: 1) an order granting the government’s motion to amend the majority opinion; and 2) an amended opinion granting Silvano Lopez-Angel’s petition for review of a decision of the Board of Immigration Appeals and remanding. In the amended opinion, the panel held 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 and that 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 LOPEZ-ANGEL V. BARR 3 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. The panel rejected the government’s argument that Lopez was denied only an administrative appeal, explaining that, by rendering the IJ’s decision final, the BIA effectively barred any further appellate review of the underlying merits because they were not administratively exhausted. 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 4 LOPEZ-ANGEL V. BARR 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.
This opinion or order relates to an opinion or order originally issued on December 27, 2019.
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