Gualberto Chavez-Garcia v. Jefferson Sessions, 871 F.3d 991

Chavez-Garcia, born in Mexico in 1951 to a U.S. citizen mother, became a lawful permanent resident in 1972 after INS proceedings concerning his citizenship.
In 2010 he was convicted in California of sexual offenses against a developmentally disabled person and sentenced to prison; DHS charged him removable as an alien convicted of an aggravated felony (a "crime of violence").
The Immigration Judge (IJ) found him removable on January 28, 2013; the IJ informed Chavez-Garcia that his attorney would preserve and could pursue an appeal to the BIA.
On February 12, 2013, Chavez-Garcia’s counsel filed a written "Request for Immediate Removal" stating Chavez-Garcia did “not intend to appeal,” and DHS removed him to Mexico on February 13, 2013.
Chavez-Garcia’s counsel nonetheless filed an appeal to the BIA on February 22, 2013; the government moved to dismiss under the regulation that departure before appeal constitutes waiver (8 C.F.R. § 1003.3(e)).
The BIA dismissed the appeal as waived by departure; the Ninth Circuit granted review and held that departure alone did not constitute a constitutionally valid, “considered and intelligent” waiver because the IJ did not inform Chavez-Garcia that leaving would forfeit his right to appeal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether leaving the U.S. before filing an appeal constitutes a valid waiver of the right to appeal to the BIA	Chavez-Garcia: departure alone did not constitute a "considered" and "intelligent" waiver; he had reserved appeal and the IJ never told him leaving would waive appeal	Government: departure-waiver regulation (8 C.F.R. §1003.3(e)) makes departure a waiver; the February 12 letter further shows intent not to appeal	Court: Departure alone, without IJ informing the alien that leaving waives appeal, does not meet constitutional requirements for a "considered and intelligent" waiver; petition granted and remanded

United States v. Mendoza-Lopez, 481 U.S. 828 (recognizes waiver of appeal must be "considered" and "intelligent")
Garcia v. Lynch, 786 F.3d 789 (9th Cir. 2015) (waiver invalid where IJ failed to advise of information relevant to waiver)
United States v. Ubaldo-Figueroa, 364 F.3d 1042 (9th Cir. 2004) (IJ must expressly and personally inform alien of right to appeal for waiver to be valid)
Montes-Lopez v. Gonzales, 486 F.3d 1163 (9th Cir. 2007) (appellate courts may not decide claims the immigration court did not consider)
Martinez-de Bojorquez v. Ashcroft, 365 F.3d 800 (9th Cir. 2004) (due process violation when IJ failed to inform alien that departure would waive appeal)
United States v. Gomez, 757 F.3d 885 (9th Cir. 2014) (government must prove waiver by clear and convincing evidence)
United States v. Reyes-Bonilla, 671 F.3d 1036 (9th Cir. 2012) (same standard for proving waiver)
INS v. Ventura, 537 U.S. 12 (per curiam) (limits review where administrative tribunal has not considered an issue)