HON. JEFFREY CHASE ON APPEAL WAIVER AND CHAVEZ-GARCIA V. SESSIONS

https://www.jeffreyschase.com/blog/2017/9/28/9th-cir-holds-post-order-departure-did-not-waive-right-to-appeal

Jeffrey writes:

“So then why did the circuit court grant the petition, in spite of the regulation, the petitioner being advised of his right to appeal, the attorney’s letter, and the non-response to the DHS motion to summarily dismiss? As the court explained, “the constitutional requirements of a valid waiver of the right to appeal cannot be so lightly disregarded.” The court continued that the Supreme Court has held that a valid waiver of the right to appeal must be “considered” and “intelligent.” The court found that, where the petitioner had heard his attorney reserve his right to appeal, and had even been informed by the immigration judge that his attorney would appeal, the petitioner’s waiver could not be intelligent and informed without the immigration judge warning him that his departure would constitute a waiver of the right to appeal that he previously reserved.

This decision is not likely to impact a large number of people. But the case does illustrate (in the immigration context) the tremendous respect that circuit court judges afford to constitutional protections. While our prior commander-in-chief (who taught constitutional law for 12 years at the University of Chicago Law School) might not have needed a reminder of that point, the incumbent might wish to take note.”

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Read the rest of Jeffrey’s blog, including a great piece of immigration history involving Judge Carlos Bea at the link.

Here’s a link to my previous post on Chavez-Garcia:

http://wp.me/p8eeJm-1sf

PWS

09-28-17

9TH CIR SAYS DEPARTURE DOES NOT AUTOMATICALLY WAIVE BIA APPEAL: CHAVEZ-GARCIA V. SESSIONS

14-72172

Chavez-Garcia v. Sessions, 9th Cir., 09-21-17 (published)

Before: S. Jay Plager,* Carlos T. Bea, and John B. Owens, Circuit Judges.

Opinion by Judge Bea; Dissent by Judge Owens

* The Honorable S. Jay Plager, United States Circuit Judge for the U.S. Court of Appeals for the Federal Circuit, sitting by designation.

KEY QUOTE:

“As a general rule, ignorance of the law is no excuse[.]” Antonio–Martinez v. INS, 317 F.3d 1089, 1093 (9th Cir. 2003) (citing Cheek v. United States, 498 U.S. 192, 199, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991)). Therefore, one might conclude that Chavez–Garcia validly waived his right to appeal when he departed from the United States because of the mere existence of the departure-waiver regulation coupled with the fact that Chavez–Garcia was represented by counsel during and after his removal proceedings. Our precedent suggests otherwise. Even though regulations that interpret the INA expressly state that an alien may appeal his removal order to the BIA, the Ninth Circuit does not treat an alien’s waiver of his right to appeal as valid unless the IJ “expressly and personally inform[s] the alien that he has the right to appeal.” See Ubaldo–Figueroa, 364 F.3d at 1049; see also 8 C.F.R. § 1003.38(a). By that same logic, even though the departure-waiver regulation expressly states that an alien’s departure constitutes a waiver of his right to appeal to the BIA, an IJ must inform an alien who requests immediate removal that his departure would constitute a waiver of his right to appeal. See Garcia, 786 F.3d at 792 (holding in a slightly different context that “an alien’s waiver of his right to appeal” was not “considered and intelligent” because “the IJ fail [ed] to advise [him]” of information relevant to the future outcome of his case). Without the information that his departure would constitute a waiver of appeal, conveyed from the IJ to the alien, the IJ has no way to know whether an alien’s departure alone qualifies as a “considered” and “intelligent” waiver of his right to appeal his removal order. See Martinez-de Bojorquez v. Ashcroft, 365 F.3d 800, 806 (9th Cir. 2004) (holding that a petitioner’s due process rights were violated after the IJ failed to inform the petitioner when she reserved her right to appeal that her departure from the United States during her pending appeal to the BIA would constitute a waiver of her right to appeal under 8 C.F.R. § 1003.4). We grant Chavez–Garcia’s petition for review because his departure from the United States, without more, does not provide clear and convincing evidence of a “considered” and “intelligent” waiver of the right to appeal. See United States v. Gomez, 757 F.3d 885, 894 (9th Cir. 2014) (“The government must prove a valid waiver ‘by clear and convincing evidence.’ ”) (quoting United States v. Reyes–Bonilla, 671 F.3d 1036, 1043 (9th Cir. 2012)).8 The IJ’s failure to inform Chavez–Garcia that his departure would constitute a waiver of his previously reserved right to appeal to the BIA renders Chavez–Garcia’s purported waiver invalid. Therefore, his petition is granted. The case is remanded for further proceedings before the BIA.


PETITION GRANTED; REMANDED.”

Here’s Judge Owens’s Dissent:

“OWENS, Circuit Judge, dissenting:

I respectfully dissent. In my view, the February 12, 2013 letter from Chavez–Garcia’s own lawyer—which asked for his immediate removal and stated that Chavez–Garcia did “not intend to appeal” the IJ’s decision—supports the BIA’s decision to dismiss the appeal on waiver grounds.”

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Interesting case. I think the panel majority got this one right. That being said, although I gave pretty extensive appeals warnings, I don’t remember ever warning a respondent about the consequences of departure unless asked by the respondent or the attorney. But, it wouldn’t have been hard to add that to my “standard language.”

And, I  don’t really see the harm in considering the appeal. Here, the BIA’s decision to go with the appeal waiver actually caused more delay and time spent on a systemic basis than adjudicating the appeal on the merits would have.

As I used to say, in the time and energy some Immigration Judges wasted on complicated decisions to deny motions to reopen, I could have reopened the case, held a merits hearing, and adjudicated it on the merits in a way that probably would not have been appealed. “Practical judging” makes sense in a system with more than 600,000 pending cases and not a clue as to how to fairly deal with the backlog.

PWS

09-22-17