9th Cir.;

The court of appeals granted a petition for review of an order of the board of Immigration Appeals. The court held that an alien’s departure from the United States, without more, could not be deemed to provide clear and convincing evidence of a “considered” and “intelligent” waiver of his right to appeal the finding that he was removable.

Gualberto Chavez-Garcia appeared before an immigration judge (IJ) to answer a charge that he was removable. At hearing, counsel for Chavez-Garcia informed the court that if Chavez-Garcia were ordered removed, he would reserve the right to appeal that decision. The IJ then addressed Chavez-Garcia directly, and advised him that his attorney had protected his right to appeal. The IJ subsequently issued a decision finding Chavez-Garcia removable and ordering him removed. Some two weeks later, Chavez-Garcia, through counsel, filed a written request for immediate execution of the IJ’s order with removal to Mexico as soon as practicable to visit his terminally ill mother. He was removed the following day. Ten days thereafter, Chavez-Garcia’s attorney appealed the IJ’s order to the Board of Immigration Appeals (BIA).

The BIA dismissed Chavez-Garcia’s appeal. Citing 8 U.S.C. §1101(g) and 8 C.F.R. §1003.3(e), the BIA found Chavez-Garcia had waived his right to appeal by departing from the United States before he filed his appeal.

The court of appeal granted Chavez-Garcia’s petition for review, holding that his departure alone could not be deemed a “considered” and “intelligent” waiver of his right to appeal. An alien may validly waive his right to appeal his removal order as long as his waiver is “considered” and “intelligent.” Further, 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.” Thus, even though the departure-waiver regulation, at §1003.3(e), 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. Without that information, 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. Here, 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 rendered his purported waiver invalid. Judge Owens dissented.