Lopez-Angel v. Barr

Citation952 F.3d 1045
Decision Date27 December 2019
Docket NumberNo. 16-72246,16-72246
Parties Silvano LOPEZ-ANGEL, Petitioner, v. William P. BARR, Attorney General, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
ORDER

Respondent’s motion to amend the opinion, Dkt. 43 , is granted. The majority opinion is amended with the addition of the following footnote immediately after a petitioner.> on page 9 of the slip opinion:

The government argues that Lopez was denied only an administrative appeal. See 8 C.F.R. § 1003.1(b)(3). But, 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. See Barron v. Ashcroft , 358 F.3d 674, 678 (9th Cir. 2004) ; see also Montano-Vega , 721 F.3d at 1177–78 (stating that the court could not address the merits because the only final order before it was the BIA’s order invoking § 1003.4 ).

Judge Lee’s concurrence remains unchanged. No further petitions for rehearing will be permitted.

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. Background.

Lopez, a native and citizen of Mexico, became a lawful permanent resident of the United States in 1993. In 2004, Lopez was convicted of corporal injury to a spouse or cohabitant in violation of California Penal Code ("CPC") § 273.5 and sentenced to 180 days in jail. In 2007, Lopez was served with a Notice to Appear alleging that he was removable under 8 U.S.C. § 1227(a)(2)(E)(i) as an alien convicted of a crime of domestic violence. An Immigration Judge ("IJ") administratively closed the removal proceedings in April 2009 because Lopez was in state custody awaiting trial on other charges. Later that year, Lopez was convicted of kidnapping in violation of CPC § 207(a), inflicting corporal injury in violation of CPC § 273.5, and making criminal threats in violation of CPC § 422. Lopez received a five-year sentence on the kidnapping conviction; the sentences for the two other convictions were stayed.

Removal proceedings were reopened in 2012. The government lodged an additional charge, alleging that because of the 2009 kidnapping conviction, Lopez was also removable under 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien convicted of an aggravated felony for which the term of imprisonment was at least one year. Lopez conceded removability but sought cancellation of removal. The IJ concluded that Lopez was ineligible for cancellation of removal because of the kidnapping conviction. Lopez did not seek review of the IJ’s removal order and was deported to Mexico in 2013.

Lopez was apprehended in September 2015 while attempting to reenter the United States and charged with illegal reentry in violation of 8 U.S.C. § 1326. The prior order of removal was reinstated and a warrant of removal issued. In December 2015, Lopez moved in immigration court for reconsideration of the removal order and to reopen proceedings. He argued that his 2009 kidnapping conviction no longer barred him from seeking cancellation of removal because we had found unconstitutionally vague the definition of a crime of violence in 18 U.S.C. § 16(b), which is incorporated into the definition of an aggravated felony in the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101(a)(43)(F). See Dimaya v. Lynch , 803 F.3d 1110, 1120 (9th Cir. 2015), aff’d sub nom. Sessions v. Dimaya , ––– U.S. ––––, 138 S. Ct. 1204, 200 L.Ed.2d 549 (2018). Lopez subsequently successfully moved for dismissal of his illegal reentry case on this ground. United States v. Lopez-Angel , No. 3:15-cr-2730 (S.D. Cal. Apr. 18, 2016). The IJ, however, denied Lopez’s motions as untimely and also declined to reopen proceedings sua sponte.

Lopez filed a notice of appeal to the BIA on April 1, 2016. On April 21, 2016, shortly after Lopez was released from custody on the § 1326 charge, the government removed him to Mexico. The BIA then returned the record in Lopez’s appeal to the IJ, holding that Lopez had withdrawn his appeal under 8 C.F.R. § 1003.4 by departing the country. That regulation provides in relevant part:

Departure from the United States of a person who is the subject of deportation or removal proceedings, except for arriving aliens as defined in § 1001.1(q) of this chapter, subsequent to the taking of an appeal, but prior to a decision thereon, shall constitute a withdrawal of the appeal, and the initial decision in the case shall be final to the same extent as though no appeal had been taken.

8 C.F.R. § 1003.4. Lopez timely petitioned for review.

II. Jurisdiction and Standard of Review.

We have jurisdiction to review final orders of removal under 8 U.S.C. § 1252. This jurisdiction "encompasses review of decisions refusing to reopen or reconsider such orders." Mata v. Lynch , 576 U.S. 143, 135 S. Ct. 2150, 2154, 192 L.Ed.2d 225 (2015). The BIA’s decision that Lopez withdrew his appeal is "the logical and functional equivalent" of an order denying his motions. Madrigal , 572 F.3d at 242.

We review questions of law de novo but sometimes defer to the BIA’s interpretation of its governing statutes and regulations. Lezama-Garcia v. Holder , 666 F.3d 518, 524–25 (9th Cir. 2011). This is not such a case, however. The BIA’s one-member, non-precedential order is not entitled to Auer deference "because it does not reflect the BIA’s considered judgment on the question." United States v. Hernandez-Arias , 757 F.3d 874, 883 (9th Cir. 2014). And, because the BIA’s decision "contains no reasoning of any substance on the issue we consider here," Skidmore deference does not apply. See Miller v. Sessions , 889 F.3d 998, 1001–02 (9th Cir. 2018).

III. Discussion.
A. When does 8 C.F.R. § 1003.4 apply?

The withdrawal sanction in § 1003.4 is triggered by an alien’s "departure" from this country. On its face, § 1003.4 "does not distinguish between volitional and non-volitional departures." Madrigal , 572 F.3d at 244. But, the BIA has already recognized that the regulation does not apply every time a petitioner leaves this country. See Matter of Diaz-Garcia , 25 I. & N. Dec. 794, 796 (BIA 2012) (citing Wiedersperg v. INS , 896 F.2d 1179, 1181–82 (9th Cir. 1990) ). An unlawful removal, for example, does not constitute a § 1003.4 departure. Id . at 797.

The BIA, however, has expressly pretermitted whether a lawful removal during the pendency of an appeal qualifies as a departure under § 1003.4. Id . at 797 n.4. Three of our sister Circuits have also left the issue open. See Montano-Vega v. Holder , 721 F.3d 1175, 1179–80 (10th Cir. 2013) ; Ahmad v. Gonzales , 204 F. App'x 98, 99 (2d Cir. 2006) ; Long v. Gonzales , 420 F.3d 516, 520 n.6 (5th Cir. 2005) (per curiam).

But the Sixth Circuit has squarely addressed the issue. Madrigal , 572 F.3d at 244–45. Like Lopez, Madrigal was removed under an outstanding removal order after appealing an IJ’s denial of her motion to reopen. Id . at 241–42. The BIA found her appeal automatically withdrawn under § 1003.4. Id . at 242. The Sixth Circuit panel, however, unanimously held that § 1003.4 did not apply. Id . at 244–45. Analyzing under the doctrine of waiver, the court 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. Id . Otherwise, the government could vitiate the appeal of any petitioner subject to a removal order simply by removing the petitioner before a ruling by the BIA. Id . at 245. Because Madrigal was forced to leave the country by the government, the Sixth Circuit held that she did not waive her right to appeal. Id .

We agree. The analysis in Madrigal is consistent with our interpretation of a similar regulation, 8 C.F.R. § 1003.2(d), which states in relevant part:

Any departure from the United States, including the deportation or removal of a person who is the subject of exclusion, deportation, or removal proceedings, occurring after the filing of a motion to reopen or a motion to reconsider, shall constitute a withdrawal of such motion.

In Coyt v. Holder , we held that the involuntarily removal of a petitioner whose motion to reopen was pending did not withdraw the motion. 593 F.3d 902, 906–07 (9th Cir. 2010). Construing § 1003.2(d) in light of the rights provided aliens by the INA, we noted that "[i]t would completely eviscerate the statutory right to reopen provided by Congress if the agency deems a motion to reopen constructively withdrawn whenever the government physically removes the petitioner while his motion is pending before the BIA." Id . at 907. Seeking to harmonize the regulation with the underlying statutory scheme, we held that "the physical removal of a petitioner by the United States does not preclude the petitioner from pursuing a motion to reopen." Id .

Application of the withdrawal sanction of § 1003.4 here would produce a similar conflict with the INA. See Decker v. Nw. Envtl. Def. Ctr. , 568 U.S. 597, 609, 133 S.Ct. 1326, 185 L.Ed.2d 447 (2013) ("It is a basic tenet that ‘regulations, in order to be valid, must be consistent with the statute under which they are promulgated.’ ") (quoting United States v. Larionoff , 431 U.S. 864, 873, 97 S.Ct. 2150, 53 L.Ed.2d 48 (1977) ). The INA gives a petitioner the right to appeal a final removal order. See Mata , 135 S. Ct. at 2153 (citing 8 U.S.C. § 1229a(a)(1), (c)(5) ). That right encompasses "decisions refusing to reopen or reconsider such orders," including decisions based on the untimeliness of the...

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