George Camacho GARCIA, Petitioner, v. Loretta E. LYNCH, Attorney General, Respondent.
No. 11-73406.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Feb. 11, 2015. Filed May 20, 2015.
789 F.3d 789
VACATED AND REMANDED.
PER CURIAM:
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.
K. Lee Hartzler, San Diego, CA, for Petitioner.
Manuel Palau and Sara Bayram (argued), Department of Justice, Civil Division, Office of Immigration Limitation, Washington, D.C., for Respondent.
Before: MICHAEL DALY HAWKINS, RICHARD A. PAEZ, and MARSHA S. BERZON, Circuit Judges.
Concurrence by Judge BERZON.
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
In 2011, the Department of Homeland Security (“DHS“) issued a notice to appear, charging Garcia with removability as an alien convicted of an aggravated felony—specifically a theft offense for which a sentence of at least one year was imposed. See
At the second hearing, Garcia filed written pleadings prepared with the assistance of his current counsel, arguing that he was not removable because his section 487(a) conviction was not a categorical aggravated felony. Specifically, he maintained that section 487(a) was overbroad in two ways: It criminalized both theft of labor and also forms of consensual but unlawful taking of property, such as false pretenses, neither of which is included in the generic definition of theft. After DHS filed copies of the abstract of judgment and complaint from his criminal case, the IJ concluded that Garcia‘s section 487(a) conviction was an aggravated felony. Looking to the complaint, the IJ held that the conviction was for “taking the money or personal property as such,” rather than theft of labor, but did not address Garcia‘s argument regarding consensual but unlawful taking of property. Garcia was ordered removed.
The IJ then explained that Garcia, who remained unrepresented, had the right to appeal but could waive that right. Garcia said he understood. When asked if he waived appeal, Garcia responded: “I would say—so I am not eligible for any relief?” The IJ told him he was not, explaining that, despite Garcia‘s marriage to a U.S. citizen, he would need a waiver to adjust his status again, but, given his conviction, he was ineligible for any waiver. The IJ then again confirmed that Garcia understood his options regarding appeal. Garcia said he did, and then stated—three times—that he agreed to waive his right to appeal.1
Garcia nevertheless filed a pro se notice of appeal with the BIA, attaching, as his statement of reasons, a copy of his previously filed written pleadings and an argument that his conviction was not an aggravated felony. The BIA dismissed the appeal, noting that Garcia had waived it and holding that, as Garcia had “made no argument that the decision to waive appeal was not a knowing and intelligent one,” the IJ‘s decision was administratively final upon waiver. The case thus was “not properly before” it, the BIA asserted.
Garcia, now represented by counsel, filed a short motion to reconsider, arguing that “at the time he waived appeal, he was confused, had a difficult time hearing the immigration judge, and did not make a knowing, intelligent, and voluntary waiver of his right to appeal.”2 In an accompanying declaration, Garcia stated that he was scared and confused during the hearing, English was not his first language, and he had a hard time hearing the IJ. He also said that he did not believe his conviction was categorically an aggravated felony, and that he would therefore like to argue for his eligibility for cancellation of removal.
The BIA issued an opinion declining to grant reconsideration. It noted that, although it ordinarily does not have jurisdic-
Garcia timely petitioned for review of the BIA reconsideration decision.
II.
We review the denial of a motion to reconsider for abuse of discretion. Tadevosyan v. Holder, 743 F.3d 1250, 1252 (9th Cir. 2014). We will reverse such a denial “if it is arbitrary, irrational, or contrary to law.” Yepremyan v. Holder, 614 F.3d 1042, 1044 (9th Cir. 2010) (quoting Singh v. I.N.S., 295 F.3d 1037, 1039 (9th Cir. 2002)) (internal quotation marks omitted).
The BIA has held that, once the parties waive appeal, it lacks jurisdiction if the waiver is “knowingly and intelligently made.” In re Rodriguez-Diaz, 22 I. & N. Dec. 1320, 1322 (BIA 2000) (citing United States v. Mendoza-Lopez, 481 U.S. 828, 840, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987)).3 As DHS recognizes, it bears the burden to establish a valid waiver by clear and convincing evidence. See Gomez, 757 F.3d at 893-94.
“Where ‘the record contains an inference that the petitioner is eligible for relief from deportation,’ but the IJ fails to ‘advise the alien of this possibility and give him the opportunity to develop the issue,’ we do not [regard] an alien‘s waiver of his right to appeal his deportation order [as] ‘considered and intelligent.‘” United States v. Pallares-Galan, 359 F.3d 1088, 1096 (9th Cir. 2004) (quoting United States v. Muro-Inclan, 249 F.3d 1180, 1182 (9th Cir. 2001)) (some internal quotation marks omitted). In this case, the IJ advised Garcia that he was not eligible for any relief because his grand theft conviction was an aggravated felony.4 That advice was incorrect.
As an initial matter, Garcia did sufficiently exhaust this argument. We are generally barred, “for lack of subject-
Here, Garcia‘s brief motion to reconsider and accompanying declaration argued that Garcia “did not make a knowing, intelligent, and voluntary waiver of his right to appeal,” reiterated the argument made before the IJ and in the notice of appeal that the conviction was not an aggravated felony, and asserted that, therefore, Garcia was potentially eligible for relief from removal. Garcia did not spell out in so many words that his waiver should be deemed invalid because the IJ incorrectly concluded that his conviction was an aggravated felony and so failed to advise him of potential relief from removal. But Garcia did articulate each essential part of the contention he now raises. As a result, that “issue was before the BIA such that it had the opportunity to correct its error.” Figueroa, 543 F.3d at 492. “Our precedent requires nothing more.” Id. (brackets and internal quotation marks omitted).
Garcia‘s declaration indicated that, absent an aggravated felony, he was potentially eligible for cancellation of removal,
On the merits, we agree with Garcia that his conviction was not an aggravated felony. “In making a determination as to whether a prior conviction qualifies as an aggravated felony for federal deportation purposes, we employ the analytical model set forth in Taylor v. United States, 495 U.S. 575 [110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)].” Pallares-Galan, 359 F.3d at 1099.
Under Taylor‘s categorical approach, the issue is not whether the actual conduct constituted an aggravated felony, but whether the full range of conduct encompassed by the state statute constitutes an aggravated felony, and we look only to the fact of conviction and the statutory definition of the prior offense to make this determination. If we determine that the statute which the defendant was found to have violated is broader in scope than the federal provision—that the state statute proscribes not only conduct that would constitute an aggravated felony but also conduct that would not—then the state conviction may not be used, except under a modified categorical approach. Under the modified categorical approach, the conviction may be used only if the record contains documentation or judicially noticeable facts that clearly establish that the conviction is a predicate conviction. Id. (brackets, citations, and internal quotation marks omitted).
As was clear at the time of Garcia‘s hearing, a conviction under
The IJ nevertheless found that the conviction was an aggravated felony, applying the modified categorical approach. In doing so, he addressed only the first type of overbreadth, not whether the conviction was for a consensual or non-consensual taking.
The modified categorical approach does not establish that Garcia was convicted of a non-consensual taking. “In the context of a guilty plea, the modified categorical approach inquires whether a guilty plea to an offense defined by a nongeneric statute necessarily admitted elements of the generic offense.” Alvarado v. Holder, 759 F.3d 1121, 1130 (9th Cir. 2014) (internal quotation marks omitted). Nothing in the conviction documents in the record—namely, the abstract of judgment and criminal complaint—establishes that Garcia‘s conviction was for non-consensual grand theft.8
The complaint charged that Garcia “did willfully and unlawfully take money or personal property.” As the California Supreme Court recently reiterated, in 1927 the California legislature consolidated the crimes previously known as larceny, false pretenses, and embezzlement, inherited from English common and statutory law, into what is now section 484(a). People v. Williams, 57 Cal.4th 776, 785, 161 Cal. Rptr.3d 81, 305 P.3d 1241 (2013). One distinction among these crimes was that larceny required “‘a trespassory taking,’ which is a taking without the property owner‘s consent,” while false pretenses, for example, “involves the consensual transfer of possession as well as title of property.” Id. at 788 (emphases omitted); see also Carrillo-Jaime, 572 F.3d at 752. This change affected the wording of charging documents:
“The purpose of the consolidation was to remove the technicalities that existed in the pleading and proof of these crimes at common law. Indictments and informations charging the crime of ‘theft’ can now simply allege an ‘unlawful taking.’ ... Juries need no longer be concerned with the technical differences between the several types of theft, and can return a general verdict of guilty if they find that an ‘unlawful taking’ has been proved.... The elements of the several types of theft included within section 484 have not been changed, however, and a judgment of conviction of theft, based on a general verdict of guilty, can be sustained only if the evidence discloses the
elements of one of the consolidated offenses.”
Williams, 57 Cal.4th at 785-86 (emphasis added) (quoting People v. Ashley, 42 Cal.2d 246, 258, 267 P.2d 271 (1954)). In other words, the allegation in the complaint in this case, that Garcia did “unlawfully take” property, charges theft in violation of
United States v. Rivera, 658 F.3d 1073 (9th Cir. 2011), is not to the contrary. In Rivera, we concluded that the defendant‘s plea to a charge that he “did unlawfully steal take and carry away” personal property narrowed the conviction to the generic limits, namely a non-consensual taking. Id. at 1077-78. Although the charge in Rivera did not expressly indicate that the theft was non-consensual, its language closely tracked the portion of
DHS points to language in a different count of the complaint, of which Garcia was not convicted, charging Garcia with using the same victim‘s personally identifying information without her authorization. The most likely reading of the complaint, DHS suggests, is that the two counts are based upon the same conduct and that, therefore, the theft was without consent. That possible inference, however, is insufficient to establish that Garcia was convicted of generic theft. Alvarado, 759 F.3d at 1131.
For one thing, the taking of different property from the same victim could be covered in a single complaint. For another, Garcia was not convicted of the “without authorization” count, a circumstance that could indicate he was unwilling to plead guilty to taking the property without authorization or that the prosecution was not confident it could prove that element. So, although one perhaps could infer that the two counts arose from the same conduct, such an inference is in no way compelled. As we held in Alvarado, 759 F.3d at 1131, a bare inference of this sort does not satisfy the modified categorical approach.
In sum, the IJ “believed, incorrectly, that [Garcia‘s] conviction ... constituted a[n] ... aggravated felony,” and so “erred when [ ]he told [Garcia] that no relief was available” for that reason. Pallares-Galan, 359 F.3d at 1096. In light of the IJ‘s error, Garcia‘s “waiver of his right to appeal was not considered and intelligent.” Id. (internal quotation marks omitted). It follows that the BIA‘s denial of the motion to reconsider was contrary to law and so an abuse of discretion. Yepremyan, 614 F.3d at 1044.9
Petition GRANTED and REMANDED.
BERZON, Circuit Judge, 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
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 says, because “[w]henever the right to appeal is [validly] waived, the decision of the Immigration Judge becomes final and may be implemented immediately.” Id.; see also Shih, 20 I. & N. Dec. at 699 (holding that, “[b]ecause the immigration judge‘s decision is final [upon appeal waiver], the applicant‘s subsequent attempt to withdraw his waiver by filing a Notice of Appeal ... has no effect” and the BIA therefore “lacks jurisdiction to adjudicate the case.“).2
To establish that an IJ‘s decision is final once appeal has been validly waived, both Rodriguez-Diaz and Shih cited to former regulations to that effect. The regulations have been reorganized since then, but the current regulations say the same thing:
In this case, the BIA concluded that it had no jurisdiction because Garcia validly waived appeal. “[T]he Immigration Judge‘s decision became administratively final upon the respondent‘s waiver of the right to appeal,” the BIA held, and so the case was “not properly before” it. It cited section 1003.39, Rodriguez-Diaz and Shih.4 The BIA reaffirmed its conclusion that it lacked jurisdiction in its decision denying the motion to reconsider.
The problem with this reasoning—aside from the invalidity of the waiver, for the reasons covered in the per curiam opinion—is that the regulation governing finality,
Ocampo held
As noted above, one of the other subsections of that same regulation,
Congress, I recognize, did not specify in what “period” a noncitizen would be “permitted to seek review.”
DHS maintains before us that the term “is permitted” in the statute is sufficiently ambiguous to admit of the regulatory provision for finality upon waiver of appeal, or failure to reserve appeal, immediately after the IJ‘s decision is announced. I discern no such ambiguity. The statute requires that there be some period of time “permitted” in which a noncitizen may seek review before the BIA. There is no reasonable construction of the statutory language allowing a noncitizen no time to seek review, but instead asking him to declare his intention regarding appeal immediately upon issuance of the IJ‘s opinion.
DHS also argues that
Contrary to DHS‘s inventive argument, however, we have applied the statutory definition of finality outside the context of judicial review. See Ocampo, 629 F.3d at 926-27; Alali-Amin v. Mukasey, 523 F.3d 1039, 1041-42 (9th Cir. 2008). Ocampo, for example, applied the definition to the question whether a motion to reopen was timely filed with the BIA; finality for the purposes of judicial review was not at issue in that case. See Ocampo, 629 F.3d at 926-27.
I recognize that holding the regulation at issue here invalid would have some troubling implications: A detained noncitizen who really does wish to waive appeal so he can be removed as soon as possible may instead be required to remain in detention for 30 days until the time to appeal has expired. See
But there are countervailing considerations as well. Most notably, the appeal waiver system in immigration court raises some troubling due process concerns. Noncitizens—often unrepresented—are asked during the course of the hearing to make a binding decision whether to pursue an appeal. This in-the-moment procedure is not at all how appeal waivers are obtained in other contexts. In federal criminal cases, for example, this court has permitted appeal waivers as part of plea bargains in reliance, in part, on the defendant having sufficient time to consider the matter. See, e.g., United States v. Morris, 633 F.3d 885, 888-89 (9th Cir. 2011) (holding that the government‘s “take it or leave it plea offer,” including a plea waiver, did not violate due process because the defendant had “several weeks to consider the offer,” and this “timeframe [was] not problematic“).
It may well be that due process requires time to think and consult with counsel before appeal rights can be validly waived. Indeed, the Supreme Court has indicated that such waivers must be “considered.” United States v. Mendoza-Lopez, 481 U.S. 828, 840, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987). This case illustrates the importance of such time to think and consult. Garcia consistently sought to challenge the basis of his removal proceedings, asking for time to obtain an attorney, filing written pleadings including legal arguments that his conviction was not an aggravated felony, and, ultimately, filing an appeal. Although the record suggests that he understood the choice before him regarding the appeal, there is good reason to think that he made a spur-of-the-moment decision, in the heat of an intimidating hearing at which he was told he had no hope for relief. It is most likely, given his actions before and after the hearing, that Garcia would not have made that decision had he
Furthermore, again unlike appeal waivers in plea bargains, it is not clear there is any quid pro quo for the type of waiver that was sought here. Unless the noncitizen is detained and seeking a swift removal, it is hard to see what he gets in return for his waiver. In federal criminal cases, by contrast, plea agreements, including appeal waivers, are “contractual in nature.” United States v. Jeronimo, 398 F.3d 1149, 1153 (9th Cir. 2005), overruled on other grounds by United States v. Jacobo Castillo, 496 F.3d 947, 957 (9th Cir. 2007) (en banc).
Accepting Garcia‘s argument that the regulations are inconsistent with the INA would avoid these constitutional concerns. The due process concerns might also be addressed by adding some protections to the waiver process, including some lapse of time from the IJ‘s decision, accompanied by advice to consult counsel before deciding whether to waive appeal. With such additions to the waiver process, it is possible that, as a prudential, discretionary matter, the BIA could decline to consider an appeal because of a waiver. But whether the BIA could, with such protections, be permitted to choose not to hear an appeal is a very different question from whether it is barred from doing so, as the BIA held in this case. Cf. Singh v. Holder, 771 F.3d 647, 653 (9th Cir. 2014).
In sum, I would hold, in the alternative, that, even if Garcia‘s waiver of appeal were otherwise valid, that waiver would not render Garcia‘s removal order final. For that reason as well, the BIA abused its discretion in not reconsidering its holding that it lacked jurisdiction over this case.
v.
NESTLE USA, INC.; Archer Daniels Midland Company; Cargill Incorporated Company; Cargill Cocoa, Defendants-Appellees.
No. 10-56739.
United States Court of Appeals, Ninth Circuit.
May 22, 2015.
Terrence Patrick Collingsworth, Esquire, Senior Partner, Conrad & Scherer, LLP, Washington, DC, Paul L. Hoffman, Schonbrun Desimone Seplow Harris & Hoffman, Venice, CA, for Plaintiffs-Appellants.
Craig A. Hoover, Neal Katyal, Dominic Francis Perella, Esquire, Hogan Lovells U.S., LLP, Andrew John Pincus, Mayer Brown, LLP, Washington, DC, Julie A. Shepard, Jenner & Block, LLP, Brad D. Brian, Esquire, Daniel Paul Collins, Munger, Tolles & Olson, LLP, Los Angeles, CA, Jonathan H. Blavin, Kristin Linsley Myles, Esquire, Munger Tolles & Olson, LLP, San Francisco, CA, Lee H. Rubin, Mayer Brown, LLP, Palo Alto, CA, for Defendants-Appellees.