Lead Opinion
Concurrence by Judge BERZON.
OPINION
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.
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 California Penal Code § 487(a), and was duly convicted. The corresponding count in the complaint alleged that: “George Camacho Garcia did willfully and unlawfully take money or personal property of a value exceeding four hundred dollars ($400).” Garcia was sentenced to one year and four months in prison for that conviction.
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 8 U.S.C. §§ 1227(a)(2)(A)(iii); 1101(a)(43)(G). During an initial hearing, Garcia heard a pre-recorded message explaining the removal process, his appellate rights, and his option to waive appeal. In an ensuing individual colloquy with the IJ, Garcia said that he wished to proceed in
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.
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.”
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,
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,
“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,
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,
Garcia’s declaration indicated that, absent an aggravated felony, he was potentially eligible for cancellation of removal, 8 U.S.C. § 1229b, while on appeal Garcia has argued that, absent an aggravated felony, he was potentially eligible to readjust his status with an 8 U.S.C. § 1182(h)(1)(B) waiver. But that difference is immaterial for present purposes. DHS has made no argument, apart from its contention that his conviction was an aggravated felony, as to the merits of either form of relief, nor has it suggested that the difference between them should matter for exhaustion purposes. Indeed, Garcia may have been eligible for both.
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,
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 California Penal Code § 487(a) is not categorically an aggravated felony because, as Garcia argues, section 487(a) is doubly overbroad.
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,
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,
“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 infor-mations 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*796 elements of one of the consolidated offenses.”
Williams,
United States v. Rivera,
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,
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,
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,
Petition GRANTED and REMANDED.
Notes
. In response to the IJ's questioning to ensure Garcia really intended to waive appeal, Garcia stated "I will not appeal no more,” "I just voluntarily deporting myself,” and "I’m waiving my right to an appeal.”
. Garcia styled his filing a motion to reopen, but the BIA construed it as a motion to reconsider. Neither party challenges that construction.
. We note that Mendoza-Lopez indicated that an appeal waiver must be "considered [and] intelligent” in order to satisfy due process. Mendoza-Lopez,
. The IJ’s determination that Garcia’s conviction was an aggravated felony played a role in two distinct issues that arose at the hearing. It was the basis for the charge of removability which the IJ sustained, and it also indicated to the IJ that Garcia was not eligible for relief from removal. Only the latter issue is before us on this petition for review.
. Nothing in the record before the IJ negates Garcia’s apparent eligibility, absent an aggravated felony, for both forms of relief from removal. See United States v. Lopez-Velasquez,
. The version of the statute in effect at the time of Garcia’s conviction provided, in relevant part, "Grand theft is theft committed in any of the following cases: (a) When the money, labor, or real or personal property taken is of a value exceeding four hundred dollars ($400) ..." Cal.Penal Code § 487 (2009). The statute has since been amended to raise the value establishing grand theft to $950. See Cal.Penal Code § 487(a) (2014).
. "[Section] 484(a) defines theft in general,” while "[s]ection 487 ... describes certain circumstances in which theft will constitute grand theft.” United States v. Corona-Sanchez,
. As the question of divisibility was not raised in the briefs and oral argument, and because we reverse on other grounds, we assume for the purposes of this opinion, without deciding, that sections 487(a) and 484(a) are divisible. See Rendon v. Holder,
. Because we grant the petition on this basis, we do not reach Garcia's other contentions.
Concurrence Opinion
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)).
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.
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, 8 C.F.R. § 1003.39, on which the BIA relied, is flatly inconsistent with the INA, the governing statute.
Ocampo held 8 C.F.R. § 1241.1(f), which provides for the finality, under several circumstances, of an alternate removal order issued in connection with a grant of volun
As noted above, one of the other subsections of that same regulation, 8 C.F.R. § 1241.1(b), provides that a removal order becomes final “[u]pon waiver of appeal by the respondent.” Id. The BIA in this case relied on the equivalent language of 8 C.F.R. § 1003.39, which provides that “the decision of the Immigration Judge becomes final upon waiver of appeal.” Id. Ocampo’s reasoning applies equally to each of these provisions. Each is inconsistent with the “clear and unambiguous” statutory definition of finality, Ocampo,
Congress, I recognize, did not specify in what “period” a noncitizen would be “permitted to seek review.” 8 U.S.C. § 1101(a)(47)(B)(ii). But the statutory provision unambiguously refers to some “period,” that is, some time span with ascertainable starting and ending dates. Consistent with the express congressional directive to “issue regulations with respect to ... the time period for the filing of administrative appeals in deportation proceedings,” Immigration Act of 1990, Pub.L. No. 101-649, § 545(d)(2), 104 Stat. 4978, 5066 (1990) (emphasis added), the regulations provide that the notice of appeal must be filed within 30 days from the issuance of the IJ’s decision. 8 C.F.R. § 1003.38(b). In other words, the “period in which the alien is permitted to seek review,” 8 U.S.C. § 1101(a)(47)(B)(ii), is defined by the regulation: 30 days. At the expiration of that period, not earlier, the order becomes final unless there has been an appeal.
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 8 U.S.C. § 1101(a)(47) simply speaks to a different
Contrary to DHS’s inventive argument, however, we have applied the statutory definition of finality outside the context of judicial review. See Ocampo,
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 8 U.S.C. § 1231(a)(1) (DHS shall remove a noncitizen who has been ordered removed with the “removal period,” which begins, as relevant here, when “the order of removal becomes administratively final”); but see 8 C.F.R. § 241.7 (DHS may “permit an alien ordered removed ... to depart at his or her own expense to a destination of his or her own choice.”).
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,
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,
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 nonciti-zen 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,
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,
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.
. As the per curiam opinion notes, the BIA does require that “any waiver be knowingly and intelligently made.” Rodriguez-Diaz, 22 I. & N. Dec. at 1322.
. Aside from the concerns discussed in the text, it is dubious whether the appeal-waiver rule properly goes to the BIA's jurisdiction for two reasons. First, the Supreme Court has rejected "a reflexive extension to agencies of the very real division between the jurisdictional and nonjurisdictional that is applicable to courts." City of Arlington, Tex. v. F.C.C., - U.S. -,
Second, even if a regulation could be jurisdictional, the appeal-waiver rule would not so qualify. See Irigoyen-Briones v. Holder,
. Rodriguez-Diaz and Shih relied principally on 8 C.F.R. § 3.39 (2000 and 1993, respectively). Current 8 C.F.R. § 1003.39 (2014) contains identical language.
. The BIA also cited the last sentence of 8 C.F.R. § 1003.3(a)(1), which provides that "[a] Notice of Appeal may not be filed by any party who has waived appeal pursuant to § 1003.39.”
. We have jurisdiction to consider Garcia’s argument on this point. Unlike in Stone v. I.N.S.,
. 8 C.F.R. § 1241.1 provides, in relevant part: "An order of removal made by the immigration judge at the conclusion of proceedings under section 240 of the Act shall become final ... (f) If an immigration judge issues an alternate order of removal in connection with a grant of voluntary departure, upon overstay of the voluntary departure period, or upon the failure to post a required voluntary departure bond within 5 business days. If the respondent has filed a timely appeal with the Board, the order shall become final upon an order of removal by the Board or the Attorney. General, or upon overstay of the voluntary departure period granted or reinstated by the Board or the Attorney General.”