George Garcia v. Loretta E. Lynch

concurring:

I join, the per curiam opinion, as I entirely agree that George Camacho Garcia’s appeal waiver was invalid because his conviction was not an aggravated felony. I *797 write separately to explain an additional, more fundamental problem with the Board of Immigration Appeal’s (“BIA”) decisions in this case: In my view, the regulation upon which the BIA relied for its conclusion that it lacked jurisdiction is flatly inconsistent with the Immigration and Nationality Act (“INA”).

Routinely, when an Immigration Judge (“IJ”) renders a decision, he asks the respondent and the Department of Homeland Security (“DHS”) to decide, then and there, whether to reserve or waive the right to appeal. See In re Rodriguez-Diaz, 22 I. & N. Dec. 1320 , 1323 n. 2 (BIA 2000) (advising IJs to inform respondents: “If you want to appeal my decision, or if you want to think about appeal and decide later, you must reserve appeal now.”). If the parties both waive appeal, and the waiver is otherwise valid, then, the BIA maintains, it “do[es] not have jurisdiction over the decision of [the] Immigration Judge.” Id. at 1322 (citing Matter of Shih, 20 I. & N. Dec. 697 (BIA 1993)). 1 That is so, the BIA…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GEORGE CAMACHO GARCIA, No. 11-73406 Petitioner, Agency No. v. A070-066-192

LORETTA E. LYNCH, Attorney General, OPINION Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted February 11, 2015—San Francisco, California

Filed May 20, 2015

Before: Michael Daly Hawkins, Richard A. Paez, and Marsha S. Berzon, Circuit Judges.

Per Curiam Opinion; Concurrence by Judge Berzon SUMMARY*

Immigration

The panel granted George Camacho Garcia’s petition for review from the Board of Immigration Appeals’ decision denying his motion for reconsideration for lack of jurisdiction on the ground that he validly waived appeal.

The panel held that Garcia’s waiver of his right to appeal to the BIA was not considered and intelligent, because his decision was based upon an Immigration Judge’s incorrect advice that his prior conviction was an aggravated felony and that he was therefore ineligible for relief from removal. The panel held that Garcia’s conviction for grand theft, in…

Concurrence by Judge BERZON.

OPINION

An Immigration Judge (“IJ”) incorrectly advised George Camacho Garcia that his prior conviction was for an aggravated felony, and that he was therefore ineligible for relief from removal. Hearing that advice, Garcia waived his appeal to the Board of Immigration Appeals (“BIA”). But the advice was wrong. As a result, Garcia’s waiver of his right to appeal to the BIA was not considered and intelligent, and the BIA should have granted Garcia’s motion for reconsideration.

I.

Garcia, a native and citizen of the Philippines, became a lawful permanent resident in 2004 based on his marriage to a U.S. citizen. In 2009, he pleaded guilty to four charges in California state court, including a violation of California Penal Code § 487(a), and was duly convicted. The corresponding count in the complaint alleged that: “George Camacho Garcia did willfully and unlawfully take money or personal property of a value exceeding four hundred dollars ($400).” Garcia was sentenced to one year and four months in prison for that conviction.

In 2011, the Department of Homeland Security (“DHS”) issued a notice to appear, charging Garcia with removability as an alien…