George Garcia v. Loretta E. Lynch
786 F.3d 789
| 9th Cir. | 2015Background
- George Camacho Garcia, a Philippine native and lawful permanent resident since 2004, pleaded guilty in California (Cal. Penal Code § 487(a)) in 2009 to grand theft and was sentenced to 16 months.
- DHS charged Garcia as removable for an aggravated felony (theft offense with ≥1 year sentence) and proceedings before an IJ followed; Garcia proceeded pro se at the critical hearing.
- The IJ concluded Garcia’s § 487(a) conviction was an aggravated felony and told Garcia he was ineligible for any relief; Garcia then waived his right to appeal to the BIA at the hearing.
- Garcia nevertheless filed a pro se BIA appeal; the BIA dismissed it as waived and denied his subsequent motion to reconsider, finding the waiver knowing and voluntary and declining to address whether the IJ’s legal advice was correct.
- Garcia petitioned for review; the Ninth Circuit held the IJ’s advice was incorrect because § 487(a) is overbroad and the record did not establish a nongeneric (non-consensual) theft, so the waiver was not ‘‘considered and intelligent’’ and the BIA abused its discretion in denying reconsideration.
Issues
| Issue | Garcia's Argument | DHS/BIA's Argument | Held |
|---|---|---|---|
| Validity of appeal waiver | Waiver was not knowing/intelligent because IJ misadvised him that his conviction made him ineligible for relief | Waiver was knowing/voluntary; IJ explained rights and Garcia confirmed waiver | Waiver invalid: IJ incorrectly told Garcia he had no relief; waiver therefore not considered and intelligent; remand granted |
| Whether § 487(a) conviction is an aggravated felony (categorical/modified approach) | § 487(a) is overbroad (covers theft of labor and consensual takings like false pretenses) and conviction documents do not show nongeneric theft | Conviction language indicates theft of property and IJ used modified categorical approach to treat it as generic theft | § 487(a) is not categorically an aggravated felony; records do not establish non-consensual taking; IJ erred |
| Exhaustion of administrative remedies | Garcia argued waiver invalid and potential eligibility for relief in his motion to reconsider and declaration | BIA said Garcia made no argument that his waiver was unknowing and thus lacked basis | Court: Garcia sufficiently exhausted; motion raised essential contentions such that BIA had opportunity to address them |
| BIA jurisdiction/finality rule (concurrence) | (Berzon) Regulation making IJ decision final upon waiver conflicts with INA definition of finality; waiver at hearing should not immediately divest BIA jurisdiction | BIA relied on 8 C.F.R. §1003.39 and precedent to treat waiver as rendering IJ decision final | Concurrence: regulation inconsistent with INA; even if waiver otherwise valid, it should not make order final for BIA purposes immediately; raises due process concerns |
Key Cases Cited
- United States v. Mendoza-Lopez, 481 U.S. 828 (1987) (due-process requirement that waiver be knowing and intelligent)
- United States v. Pallares-Galan, 359 F.3d 1088 (9th Cir. 2004) (waiver invalid if IJ fails to advise of possible relief when record suggests eligibility)
- United States v. Rivera, 658 F.3d 1073 (9th Cir. 2011) (when charging language tracks larceny, modified categorical approach may narrow to generic theft)
- Alvarado v. Holder, 759 F.3d 1121 (9th Cir. 2014) (modified categorical approach for guilty pleas asks whether plea necessarily admitted elements of generic offense)
- Ocampo v. Holder, 629 F.3d 923 (9th Cir. 2010) (regulation treating waiver as triggering finality conflicts with statutory definition of finality)