952 F.3d 1045
9th Cir.2019Background
- Lopez, a Mexican national and U.S. lawful permanent resident, had prior convictions including a 2009 kidnapping that led to a five-year sentence; he was ordered removed in 2013 and deported to Mexico.
- In 2015 he was apprehended for illegal reentry; the prior removal order was reinstated; he moved to reopen/reconsider based on Dimaya-related vagueness arguments that could affect the aggravated-felony finding.
- The IJ denied his motions as untimely; Lopez appealed to the BIA on April 1, 2016; while the appeal was pending the government removed Lopez to Mexico on April 21, 2016.
- The BIA returned the appeal to the IJ, concluding Lopez withdrew the appeal by departing under 8 C.F.R. § 1003.4.
- Lopez petitioned for review in the Ninth Circuit, which considered whether involuntary removal by the government constitutes a § 1003.4 "departure" that withdraws an appeal and whether Lopez otherwise waived his appeal.
- The Ninth Circuit held that § 1003.4 applies only to voluntary waiver (departure by the alien) and that Lopez did not waive his appeal; it granted the petition and remanded for reinstatement of the appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 8 C.F.R. §1003.4 withdraws an appeal when the government lawfully removes the appellant while an appeal is pending | Lopez: involuntary removal does not constitute withdrawal; §1003.4 should be read to require voluntary relinquishment | Government: any "departure" after an appeal—including lawful removal—operates as withdrawal under §1003.4 | Held: §1003.4 applies only where the alien voluntarily waives the right to appeal; involuntary removal does not withdraw the appeal |
| Whether Lopez otherwise waived his right to appeal by prior conduct or inaction (e.g., not seeking a stay) | Lopez: he did not voluntarily depart and took available steps; no evidence of intentional relinquishment | Government: failure to appeal earlier removal or seek a stay constitutes waiver or forfeiture | Held: No evidence of voluntary relinquishment; Lopez did not waive his appeal and the petition for review is granted |
Key Cases Cited
- Madrigal v. Holder, 572 F.3d 239 (6th Cir. 2009) (holds §1003.4 withdrawal requires voluntary waiver; involuntary removal does not effectuate waiver)
- Coyt v. Holder, 593 F.3d 902 (9th Cir. 2010) (physical removal by the government does not withdraw a pending motion to reopen under §1003.2(d))
- Mata v. Lynch, 135 S. Ct. 2150 (2015) (statutory right to appeal includes review of denials to reopen or reconsider)
- Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597 (2013) (regulations must be consistent with the statute that authorizes them)
- Sessions v. Dimaya, 138 S. Ct. 1204 (2018) (Supreme Court decision confirming vagueness issues central to Lopez’s underlying reopening argument)