UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT JUN 20 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

EMILIA ROJAS- No. 21-180 LAZARO and CLARIVET SULLY Agency Nos.

HUAMAN-ROJAS,

A212-992-316

A212-992-315

Petitioners,

v. ORDER

MERRICK B. GARLAND, Attorney General,

Respondent.

Before: BYBEE and FORREST, Circuit Judges, and SEEBORG, District Judge.*

Respondent’s unopposed motion (Docket Entry No. 38) to amend is

granted. Accordingly, an amended memorandum disposition shall be filed

concurrent to this order. The deadline for filing a petition for rehearing having

passed, the mandate shall issue in due course.

* The Honorable Richard Seeborg, United States District Judge for the Northern District of California, sitting by designation.

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT JUN 20 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

EMILIA ROJAS-LAZARO; CLARIVET No. 21-180

SULLY HUAMAN-ROJAS,

Agency Nos. Petitioners, A212-992-316

A212-992-315

v.

MERRICK B. GARLAND, Attorney AMENDED General, MEMORANDUM*

Respondent.

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

Submitted April 11, 2023 Seattle, Washington**

Before: BYBEE and FORREST, Circuit Judges, and SEEBORG,*** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed R. App. P. 34(a)(2). *** The Honorable Richard Seeborg, Chief United States District Judge for the Northern District of California, sitting by designation. Emilia Rojas-Lazaro and her minor daughter petition for review of the Board

of Immigration Appeals’ (BIA) denial of their motion to reopen. We have

jurisdiction under 8 U.S.C. § 1252 and review the BIA’s denial of a motion to

reopen for abuse of discretion. Hernandez-Ortiz v. Garland, 32 F.4th 794, 800

(9th Cir. 2022). We grant the petition.

The government instituted removal proceedings against the petitioners in

May 2017. Rojas-Lazaro conceded removability and applied for asylum,

withholding of removal, cancellation of removal, and protection under the

Convention Against Torture.

In March 2019, the immigration judge (IJ) held a hearing in which Rojas-

Lazaro presented evidence to support her applications for immigration relief. A

Spanish interpreter was present. At the conclusion of the hearing, the IJ indicated

that he would not grant Rojas-Lazaro’s applications and asked whether Rojas-

Lazaro would like pre-conclusion voluntary departure. To qualify for pre-

conclusion voluntary departure, a noncitizen must withdraw all active applications

for immigration relief and waive her right to appeal. 8 C.F.R.

§ 1240.26(b)(1)(i)(B), (D). After a brief recess, counsel for Rojas-Lazaro

requested pre-conclusion voluntary departure on her behalf. The IJ granted

2 voluntary departure and issued an order noting that Rojas-Lazaro had withdrawn

her applications for immigration relief and waived appeal.

Rojas-Lazaro filed a motion to reopen, contending that she did not have the

time or understanding to adequately consider the waiver of her appeal and

withdrawal of her applications for relief. In conjunction with her motion, Rojas-

Lazaro filed declarations from herself and her attorney explaining that Rojas-

Lazaro did not understand what was happening during her hearing. According to

these declarations, Rojas-Lazaro did not discover she had forfeited her applications

and waived her appeal until she spoke with her attorney through an interpreter a

few days after the hearing. The IJ denied the motion to reopen in a form order.

Rojas-Lazaro appealed to the BIA, which affirmed the IJ’s denial.

To comport with due process, a waiver of appeal must be “considered and

intelligent.” United States v. Pallares-Galan, 359 F.3d 1088, 1096 (9th Cir. 2004)

(citing United States v. Leon-Paz, 340 F.3d 1003, 1005 (9th Cir. 2003)). This

“inquiry focuses on whether [the noncitizen] personally made a ‘considered and

intelligent’ waiver of his appeal.” United States v. Ubaldo-Figueroa, 364 F.3d

1042, 1049 n.8 (9th Cir. 2004) (citation omitted). Here, the record does not show

that Rojas-Lazaro personally gave up her applications or her appeal. At no point in

the hearing did anyone ask Rojas-Lazaro whether she agreed to voluntary

3 departure, the withdrawal of her applications for immigration relief, or the waiver

of her appeal.

The government argues that the waiver was valid because Rojas-Lazaro was

represented by counsel who accepted voluntary departure on her behalf. However,

waiver by counsel “will not support a finding that the detainee made a knowing

and considered waiver of the right to appeal.” United States v. Proa-Tovar, 945

F.2d 1450, 1453 (9th Cir. 1991), superseded on other grounds by 975 F.2d 592

(9th Cir. 1992) (en banc); see also Ubaldo-Figueroa, 364 F.3d at 1049 & n.8. And

even though the IJ explained to counsel the consequences of accepting voluntary

departure, the IJ failed to “expressly and personally” explain those consequences to

Rojas-Lazaro, as due process requires. Ubaldo-Figueroa, 364 F.3d at 1049

(emphasis added).

Because nothing in the record supports a finding that Rojas-Lazaro

“personally” waived her appeal, or that such waiver was “considered and

intelligent,” id. at 1049 n.8 (citation omitted), the BIA abused its discretion by

denying the motion to reopen. See also Bonilla v. Lynch, 840 F.3d 575, 581 (9th

Cir. 2016) (“The BIA abuses its discretion when its decision is arbitrary, irrational,

or contrary to law.” (citation omitted)). We therefore grant the petition for review

4 and remand to the BIA for further proceedings in light of our determination that

the BIA abused its discretion in denying the motion to reopen.

PETITION GRANTED.

5