Gualberto Chavez-Garcia v. Eric Holder, Jr.

Filing

FILED OPINION (S. JAY PLAGER, CARLOS T. BEA and JOHN B. OWENS) GRANTED; REMANDED, Judge: CTB Authoring, Judge: JBO Dissenting. FILED AND ENTERED JUDGMENT. [10588651]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GUALBERTO CHAVEZ-GARCIA, AKA
Ualberto Chavez, AKA Gilbert
Garcia-Chavez,
Petitioner,

No. 14-72172
Agency No.
A031-441-662

v.
OPINION
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 4, 2017
Pasadena, California
Filed September 21, 2017
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.

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SUMMARY**

Immigration
The panel granted Gualberto Chavez-Garcia’s petition
for review of the Board of Immigration Appeals’ decision
dismissing his appeal on the ground that Chavez-Garcia
waived his right to appeal by departing under an order of
removal, and remanded.
The panel held that Chavez-Garcia’s departure from the
United States, without more, did not provide clear and
convincing evidence of a “considered” and “intelligent”
waiver of the right to appeal, and therefore did not meet the
constitutional requirements of a valid waiver. The panel
further held that the immigration judge’s failure to inform
Chavez-Garcia that his departure would constitute a waiver
of his previously reserved right to appeal to the Board
rendered his purported waiver invalid.
Dissenting, Judge Owens wrote that a letter from
Chavez-Garcia’s own lawyer – which asked for ChavezGarcia’s immediate removal and stated that Chavez-Garcia
did not intend to appeal the immigration judge’s decision –
supports the Board’s decision to dismiss the appeal on
waiver grounds.

**

This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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COUNSEL
Gowri Ramachandran (argued), Supervising Attorney;
Alexandra Angel (argued), Charlie Wang (argued) Samuel
Barry, and Nadejda Sokolova, Certified Law Students;
Southwestern Law School, Los Angeles, California; Andrew
Knapp, Immigrant Access to Justice Assistance, Los
Angeles, California; for Petitioner.
Elizabeth Fitzgerald-Sambou (argued) and Mona Maria
Yousif, Trial Attorneys; John S. Hogan, Assistant Director;
Office of Immigration Litigation, United States Department
of Justice, Washington, D.C.; for Respondent.

OPINION
BEA, Circuit Judge:
We must decide whether Gualberto Chavez-Garcia
waived his right to appeal his removal order to the Board of
Immigration Appeals (“BIA”) by his departure from the
United States before he filed his appeal. See 8 C.F.R.
§ 1003.3(e) (“Departure from the United States of a person
who is the subject of deportation proceedings, prior to the
taking of an appeal from a decision in his or her case, shall
constitute a waiver of his or her right to appeal.”). We hold
that Chavez-Garcia’s departure alone did not constitute a
“considered” and “intelligent” waiver of his right to appeal,
and therefore did not meet the constitutional requirements of
a valid waiver.
FACTUAL AND PROCEDURAL BACKGROUND
Gualberto Chavez-Garcia was born in Mexico in 1951 to
Sabina Garcia, a United States (“U.S.”) citizen, and her

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husband, Baldomero Chavez, a Mexican citizen. At the time
of Chavez-Garcia’s birth, a child born outside the U.S. to a
U.S. citizen, who was married to an alien, acquired U.S.
citizenship upon birth if the U.S. parent had resided in the
U.S. for ten years prior to the child’s birth, and at least five
of those years accrued after the age of sixteen. See 8 U.S.C.
§ 601(g) (1940). A child born out of wedlock and outside the
U.S. to a U.S. citizen mother acquired U.S. citizenship as
long as the mother had resided in the U.S. prior to the birth
and the non-U.S. citizen father did not legitimate the child.
See 8 U.S.C. § 605 (1940).
Chavez-Garcia entered the U.S. on May 20, 1958, after
the U.S. Consulate in Guadalajara, Mexico registered him as
a U.S. citizen derived through his mother. In 1967, ChavezGarcia filed an application for a certificate of citizenship
with the Immigration and Naturalization Service (“INS”).
The INS opened an investigation. During that investigation,
Chavez-Garcia’s mother testified that she left the U.S. in
1931, when she was roughly two years old, and did not
return to the U.S. until 1958, seven years after he was born.
Both of Chavez-Garcia’s parents testified that they were not
married by civil ceremony until 1958. However, his parents
later corrected that testimony and affirmed that they had
been married in 1947 by religious and civil ceremony. They
explained that they had been married once with Sabina’s
common name (Maria Rosa Garcia) in 1947 and a second
time with Sabina’s legal name (Sabina Garcia) in 1958.
In 1968, the INS determined that Chavez-Garcia was not
a U.S. citizen because his married mother did not establish
the statutorily required ten years of residence in the U.S.
prior to her child’s birth with at least five years occurring
after the age of sixteen. In the same year, Chavez-Garcia’s
mother withdrew a separate application for Chavez-Garcia’s

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citizenship for the same reason. In 1969, the INS advised
Chavez-Garcia that he was unlawfully present in the U.S. but
might be able to obtain an immigrant visa from a U.S.
Consul abroad. Later that year, Chavez-Garcia’s mother
filed a petition for an immigrant visa on Chavez-Garcia’s
behalf. In 1970, the INS approved that application. ChavezGarcia became a lawful permanent resident in 1972.
On February 4, 2010, Chavez-Garcia pled nolo
contendere and was convicted of Oral Copulation of an
Incompetent Person in violation of Cal. Penal Code
§ 288a(g),1 and Sexual Penetration of a Victim Incapable of
Consent in violation of Cal. Penal Code § 289(b).2 The
convictions were based on a report that Chavez-Garcia had
sexual relations with a resident of the Safe Harbor Adult
Health Care Center who was “mildly retarded,” “had the
1

Cal. Penal Code § 288a(g) (“[A]ny person who commits an act of
oral copulation, and the victim is at the time incapable, because of a
mental disorder or developmental or physical disability, of giving legal
consent, and this is known or reasonably should be known to the person
committing the act, shall be punished by imprisonment in the state
prison, for three, six, or eight years. . . . [T]he prosecuting attorney shall
prove, as an element of the crime, that a mental disorder or
developmental or physical disability rendered the alleged victim
incapable of giving consent.”).
2

Cal. Penal Code § 289(b) (“[A]ny person who commits an act of
sexual penetration, and the victim is at the time incapable, because of a
mental disorder or developmental or physical disability, of giving legal
consent, and this is known or reasonably should be known to the person
committing the act or causing the act to be committed, shall be punished
by imprisonment in the state prison for three, six, or eight years. . . .
[T]he prosecuting attorney shall prove, as an element of the crime, that a
mental disorder or developmental or physical disability rendered the
alleged victim incapable of giving legal consent.”).

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mentality of a child,” and was “confined to a wheelchair.”
At the time of the charged crime, Chavez-Garcia was
employed as a bus driver at the Safe Harbor Adult Health
Care Center. Chavez-Garcia was sentenced to consecutive
terms of three years in prison for the § 288a(g) violation and
two years in prison for the § 289(b) violation.
On May 24, 2010, the Department of Homeland Security
(“DHS”) issued Chavez-Garcia a Notice to Appear before an
Immigration Judge (“IJ”) to answer the charge that he was
removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) as an
alien convicted of the aggravated felony of a crime of
violence as defined by 18 U.S.C. § 16.3 Chavez-Garcia was
represented by counsel throughout his removal proceedings.
Chavez-Garcia moved to terminate his removal proceedings
on the basis that he was a U.S. citizen. Chavez-Garcia also
argued that even if he was an alien, neither of his convictions
qualified as a “crime of violence” under 18 U.S.C. § 16.
Therefore, he had not committed an “aggravated felony”
which would render him removable under 8 U.S.C.
§ 1227(a)(2)(A)(iii). On January 28, 2013, the IJ issued a
decision that denied Chavez-Garcia’s motion to terminate
his removal proceedings and found that Chavez-Garcia was
removable. The IJ determined that Chavez-Garcia was not a
U.S. citizen because his parents were married prior to his
birth and his mother did not reside in the U.S. for the time

3
“Any alien who is convicted of an aggravated felony at any time
after admission is deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii). The
Immigration and Nationality Act (INA) includes many offenses in the
definition of “aggravated felony,” including—as is relevant here—a
“crime of violence (as defined in [18 U.S.C. § 16] . . . for which the term
of imprisonment [sic] at least one year.” Id. § 1101(43)(F).

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necessary for Chavez-Garcia to obtain citizenship.4 The IJ
also found that Chavez-Garcia was removable as an alien
convicted of the aggravated felony of a crime of violence, as
defined by 18 U.S.C. 16(b).5 The IJ determined that because
Chavez-Garcia’s actions “were taken in absence of the
victim’s actual consent, his acts necessarily involved, at a
minimum, the risk that force might be used to commit the
act.” The IJ observed that statutes criminalizing sexual acts
which presuppose a lack of consent necessarily involve a
risk of physical force because nonconsensual sexual
touching “carries with it the ever-present possibility that the
victim may figure out what’s really going on and decide to
resist, in turn requiring the perpetrator to resort to actual
physical restraint.” (quoting United States v. Rowland,
357 F.3d 1193, 1197 (10th Cir. 2004) and citing Valencia v.

4

Although the IJ made a determination of inadequate residency, the
BIA explicitly declined to make any findings as to the citizenship issue.
For this reason, neither do we. See Cordon-Garcia v. I.N.S., 204 F.3d
985, 990 (“Where the BIA reviews the IJ’s decision de novo, our review
is limited to the BIA’s decision, except to the extent the IJ’s opinion is
expressly adopted.”).
5

18 U.S.C. § 16(b) (“The term ‘crime of violence’ means . . . (b) any
other offense that is a felony and that, by its nature, involves a substantial
risk that physical force against the person or property of another may be
used in the course of committing the offense.”). Only § 16(b) is at issue
here. The Supreme Court has yet to file an opinion in Sessions v. Dimaya,
137 S. Ct. 31 (Mem.) (Sept. 29, 2016), a case which will resolve the
question whether 18 U.S.C. § 16(b) is unconstitutionally vague.
However, because we grant the petition for review on the grounds
discussed in this opinion and do not reach the question whether ChavezGarcia’s underlying conviction met the definition of a crime of violence
under 18 U.S.C. § 16(b), we need not await the Court’s decision to
resolve this case.

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Gonzales, 439 F.3d 1046 (9th Cir. 2006) and Lisbey v.
Gonzales, 420 F.3d 930 (9th Cir. 2005)).
On February 12, 2013—more than two weeks after the
IJ issued its decision—Chavez-Garcia, via 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. The filing stated that Chavez-Garcia
did “not intend to appeal the decision of the [IJ].” One day
later, on February 13, 2013, DHS removed Chavez-Garcia
to Mexico.
On February 22, 2013, Chavez-Garcia’s attorney
appealed the IJ’s order to the BIA. Chavez-Garcia again
argued that his state convictions did not qualify as crimes of
violence and that he was a U.S. citizen. The Government
moved for summary dismissal because Chavez-Garcia’s
departure from the U.S. constituted a waiver of his right to
appeal. See 8 C.F.R. § 1003.3(e) (“Departure from the
United States of a person who is the subject of deportation
proceedings, prior to the taking of an appeal from a decision
in his or her case, shall constitute a waiver of his or her right
to appeal.”). Chavez-Garcia filed a motion to file an
appendix, arguing that the disabled victim of ChavezGarcia’s crimes said in a police report that she enjoyed
having sex with him and wanted him to call her. ChavezGarcia did not respond to the Government’s motion for
summary dismissal.
On June 16, 2014, the BIA dismissed Chavez-Garcia’s
appeal. Citing 8 U.S.C. § 1101(g)6 and the departure-waiver
6

8 U.S.C. § 1101(g) (“For the purposes of this chapter any alien
ordered deported or removed (whether before or after the enactment of
this chapter) who has left the United States, shall be considered to have

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regulation, the BIA determined that Chavez-Garcia waived
his right to appeal by departing under an order of removal
and that the IJ’s order became administratively final upon
Chavez-Garcia’s departure. The BIA declined to address
Chavez-Garcia’s arguments on the merits because he
departed from the United States before he filed an appeal and
failed to respond to the Government’s motion for summary
dismissal. Chavez-Garcia petitioned this court for review of
the BIA’s decision.
DISCUSSION
We review questions of law de novo. RodriguezEcheverria v. Mukasey, 534 F.3d 1047, 1050 (9th Cir. 2008).
We review the BIA’s factual findings for substantial
evidence. See Hamazaspyan v. Holder, 590 F.3d 744, 747
(9th Cir. 2009); Chebchoub v. INS, 257 F.3d 1038, 1042 (9th
Cir. 2001) (“The substantial evidence standard is highly
deferential to the Board, and for us to overturn the Board’s
decision, [the applicant] must show that the evidence
compels reversal.”).
Although the BIA references Chavez-Garcia’s “Request
for Immediate Removal” in its decision, the BIA decision
been deported or removed in pursuance of law, irrespective of the source
from which the expenses of his transportation were defrayed or of the
place to which he departed.”). That provision says nothing about the right
to appeal to the BIA or the waiver of that right. In fact, our court has
interpreted “the phrase ‘who has left the United States,’ found in section
1101(g), so as to exclude illegally executed departures effected by the
government.” Mendez v. INS, 563 F.2d 956, 959 (9th Cir. 1977) (citing
Mrvica v. Esperdy, 376 U.S. 560, 564 (1964)). As we will explain,
Chavez-Garcia’s waiver-by-departure—executed by the government in
contravention of due process—cannot exclude his petition from judicial
review based on our court’s interpretation of 8 U.S.C. § 1101(g). Id.

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makes clear that Chavez-Garcia’s departure alone
constituted a waiver of his right to appeal. The BIA did not
consider whether Chavez-Garcia’s “Request for Immediate
Removal,” including his statement that he did “not intend to
appeal the decision of the [IJ],” met the requirements of a
“considered” and “intelligent” waiver of his right to appeal
to the BIA. Therefore, we must consider whether ChavezGarcia’s departure alone constituted a valid waiver of his
right to appeal, and not whether his “Request for Immediate
Removal” so qualified. See Montes-Lopez v. Gonzales,
486 F.3d 1163, 1165 (9th Cir. 2007) (“[W]e are not
permitted to decide a claim that the immigration court has
not considered in the first instance.”) (citing INS v. Ventura,
537 U.S. 12, 16 (2002) (per curiam)). No one disputes that
Chavez-Garcia left the United States before he appealed his
removal order to the BIA. If we accept the validity of the
departure-waiver regulation on its face and without further
consideration of the constitutional requirements of a valid
waiver, Chavez-Garcia waived his right to appeal as soon as
he departed from the United States. That was the sole basis
of the BIA decision.
However, the constitutional requirements of a valid
waiver of the right to appeal cannot be so lightly disregarded.
Therefore, we must determine whether Chavez-Garcia’s
departure alone meets the constitutional requirements of a
valid waiver.
The Supreme Court has recognized that an alien may
validly waive his right to appeal his removal order as long as
his waiver is “considered” and “intelligent.” United States v.
Mendoza-Lopez, 481 U.S. 828, 840 (1987) (“Because the
waivers of their rights to appeal were not considered or
intelligent, respondents were deprived of judicial review of
their deportation proceeding.”); see also Garcia v. Lynch,

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786 F.3d 789, 790 (9th Cir. 2015) (granting a petition for
review because the petitioner’s “waiver of his right to appeal
to the BIA was not considered and intelligent”); In re
Rodriguez-Diaz, 22 I. & N. Dec. 1320, 1322 (BIA 2000)
(“Whenever the right to appeal is [validly] waived, the
decision of the Immigration Judge becomes final and may be
implemented immediately.”).
Chavez-Garcia argues that he did not provide a
“considered” and “intelligent” waiver of his right to appeal
to the BIA by virtue of his departure alone, and points out
that he expressly reserved his right to appeal during his
removal proceedings. The government argues that ChavezGarcia’s departure alone constituted a valid waiver of his
right to appeal to the BIA under the departure-waiver
regulation, and that Chavez-Garcia’s “Request for
Immediate Removal” provides an additional basis to hold
that Chavez-Garcia waived his right to appeal in a manner
that comports with the constitutional requirements of a valid
waiver.7
At the close of Chavez-Garcia’s removal proceedings,
the Immigration Judge (“IJ”) had the following exchange
with Chavez-Garcia’s attorney and Chavez-Garcia:
IJ: And just so, I mean, I know the answer to
this, but just so I have it on the record, if I

7
However, as we have already explained, the BIA did not consider
whether Chavez-Garcia’s Request for Immediate Removal met the
requirements of a “considered” and “intelligent” waiver of his right to
appeal to the BIA. Therefore, we lack the authority to consider that
claim. See Montes-Lopez, 486 F.3d at 1165.

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order him removed, he’s going to reserve
appeal, right?
Attorney: Yes, Judge. . . .
IJ (to Chavez-Garcia): Mr. Chavez-Garcia,
okay. That’s right. You’re okay in English
. . . Your attorney has protected your right to
appeal and he’s going to take my decision to
the next higher court and argue before the
next higher court that my decision is
incorrect[.]

Thus, the IJ informed Chavez-Garcia of his right to appeal
his removal order, as required by law. See United States v.
Ubaldo-Figueroa, 364 F.3d 1042, 1049 (9th Cir. 2004) (“An
alien can not make a valid waiver of his right to appeal a
removal order if an IJ does not expressly and personally
inform the alien that he has the right to appeal.”). ChavezGarcia heard his attorney reserve his right to appeal. The IJ
even told Chavez-Garcia that his attorney would take the IJ’s
“decision to the next higher court[.]”Chavez-Garcia then
departed from the United States to visit his ailing mother in
Mexico, albeit at government expense, as requested by
Chavez-Garcia prior to his departure. The IJ never informed
Chavez-Garcia that his departure would constitute a waiver
of his right to appeal to the BIA.
“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
(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 departurewaiver regulation coupled with the fact that Chavez-Garcia

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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 ChavezGarcia’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,

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1043 (9th Cir. 2012)).8 The IJ’s failure to inform ChavezGarcia 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.

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.

8
Because we grant the petition for review on the ground that
Chavez-Garcia did not provide a “considered” and “intelligent” waiver
of his right to appeal to the BIA by virtue of his departure alone, we need
not consider Chavez-Garcia’s alternative argument that the departurewaiver regulation is invalid.