Rojas-Lazaro v. Garland ( 2023 )

UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUN 20 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
EMILIA ROJAS- No. 21-180
LAZARO and CLARIVET SULLY
Agency Nos.
HUAMAN-ROJAS,
A212-992-316
A212-992-315
Petitioners,
v. ORDER
MERRICK B. GARLAND, Attorney
General,
Respondent.
Before: BYBEE and FORREST, Circuit Judges, and SEEBORG, District
Judge.*
Respondent’s unopposed motion (Docket Entry No. 38) to amend is
granted. Accordingly, an amended memorandum disposition shall be filed
concurrent to this order. The deadline for filing a petition for rehearing having
passed, the mandate shall issue in due course.
*
The Honorable Richard Seeborg, United States District Judge for
the Northern District of California, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUN 20 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
EMILIA ROJAS-LAZARO; CLARIVET No. 21-180
SULLY HUAMAN-ROJAS,
Agency Nos.
Petitioners, A212-992-316
A212-992-315
v.
MERRICK B. GARLAND, Attorney AMENDED
General, MEMORANDUM*
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 11, 2023
Seattle, Washington**
Before: BYBEE and FORREST, Circuit Judges, and SEEBORG,*** District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed R. App. P. 34(a)(2).
***
The Honorable Richard Seeborg, Chief United States District Judge
for the Northern District of California, sitting by designation.
Emilia Rojas-Lazaro and her minor daughter petition for review of the Board
of Immigration Appeals’ (BIA) denial of their motion to reopen. We have
jurisdiction under 8 U.S.C. § 1252 and review the BIA’s denial of a motion to
reopen for abuse of discretion. Hernandez-Ortiz v. Garland, 32 F.4th 794, 800
(9th Cir. 2022). We grant the petition.
The government instituted removal proceedings against the petitioners in
May 2017. Rojas-Lazaro conceded removability and applied for asylum,
withholding of removal, cancellation of removal, and protection under the
Convention Against Torture.
In March 2019, the immigration judge (IJ) held a hearing in which Rojas-
Lazaro presented evidence to support her applications for immigration relief. A
Spanish interpreter was present. At the conclusion of the hearing, the IJ indicated
that he would not grant Rojas-Lazaro’s applications and asked whether Rojas-
Lazaro would like pre-conclusion voluntary departure. To qualify for pre-
conclusion voluntary departure, a noncitizen must withdraw all active applications
for immigration relief and waive her right to appeal. 8 C.F.R.
§ 1240.26(b)(1)(i)(B), (D). After a brief recess, counsel for Rojas-Lazaro
requested pre-conclusion voluntary departure on her behalf. The IJ granted
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voluntary departure and issued an order noting that Rojas-Lazaro had withdrawn
her applications for immigration relief and waived appeal.
Rojas-Lazaro filed a motion to reopen, contending that she did not have the
time or understanding to adequately consider the waiver of her appeal and
withdrawal of her applications for relief. In conjunction with her motion, Rojas-
Lazaro filed declarations from herself and her attorney explaining that Rojas-
Lazaro did not understand what was happening during her hearing. According to
these declarations, Rojas-Lazaro did not discover she had forfeited her applications
and waived her appeal until she spoke with her attorney through an interpreter a
few days after the hearing. The IJ denied the motion to reopen in a form order.
Rojas-Lazaro appealed to the BIA, which affirmed the IJ’s denial.
To comport with due process, a waiver of appeal must be “considered and
intelligent.” United States v. Pallares-Galan, 359 F.3d 1088, 1096 (9th Cir. 2004)
(citing United States v. Leon-Paz, 340 F.3d 1003, 1005 (9th Cir. 2003)). This
“inquiry focuses on whether [the noncitizen] personally made a ‘considered and
intelligent’ waiver of his appeal.” United States v. Ubaldo-Figueroa, 364 F.3d
1042, 1049 n.8 (9th Cir. 2004) (citation omitted). Here, the record does not show
that Rojas-Lazaro personally gave up her applications or her appeal. At no point in
the hearing did anyone ask Rojas-Lazaro whether she agreed to voluntary
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departure, the withdrawal of her applications for immigration relief, or the waiver
of her appeal.
The government argues that the waiver was valid because Rojas-Lazaro was
represented by counsel who accepted voluntary departure on her behalf. However,
waiver by counsel “will not support a finding that the detainee made a knowing
and considered waiver of the right to appeal.” United States v. Proa-Tovar, 945
F.2d 1450, 1453 (9th Cir. 1991), superseded on other grounds by 975 F.2d 592(9th Cir. 1992) (en banc); see also Ubaldo-Figueroa, 364 F.3d at 1049 & n.8. And
even though the IJ explained to counsel the consequences of accepting voluntary
departure, the IJ failed to “expressly and personally” explain those consequences to
Rojas-Lazaro, as due process requires. Ubaldo-Figueroa, 364 F.3d at 1049(emphasis added).
Because nothing in the record supports a finding that Rojas-Lazaro
“personally” waived her appeal, or that such waiver was “considered and
intelligent,” id. at 1049 n.8 (citation omitted), the BIA abused its discretion by
denying the motion to reopen. See also Bonilla v. Lynch, 840 F.3d 575, 581 (9th
Cir. 2016) (“The BIA abuses its discretion when its decision is arbitrary, irrational,
or contrary to law.” (citation omitted)). We therefore grant the petition for review
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and remand to the BIA for further proceedings in light of our determination that
the BIA abused its discretion in denying the motion to reopen.
PETITION GRANTED.
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