Ninth Circuit Orders Review of Immigrant’s Deportation During Appeal

(CN) - A Ninth Circuit panel on Friday granted an immigrant’s petition to review the federal government’s decision to deport him, saying that his removal from the country during legal proceedings did not constitute a withdrawal of his appeal.

Undocumented immigrants in U.S. deportation proceedings have a right to appeal orders for their removal before the Board of Immigration Appeals. But according to BIA regulations, an immigrant’s right to an appeal is waived once they leave the country.

Silvano Lopez-Angel, a Mexican national who obtained permanent U.S. residency in 1993, was deported to Mexico in 2013 after serving prison time for a kidnapping conviction.

In 2015, Lopez-Angel was charged with illegal reentry into the U.S. but subsequently filed an appeal with the BIA the next year after an immigration judge denied dismissal of the charges.

But in April 2016, after being released from custody on the charges, Lopez-Angel was deported by federal immigration authorities.

The BIA held that Lopez-Angel waived his appeal by leaving the country.

On appeal before a Ninth Circuit panel in October, attorneys for Lopez-Angel said that the BIA regulation governing the process fails to distinguish between willful departures from the U.S. and those that are forced, such as through deportation.

The BIA has acknowledged that unlawful removals from the U.S. do not constitute willful departures and therefore do not represent withdrawals from the appeals process, the attorneys said.

Attorneys for the Justice Department told the panel that Lopez-Angel waived his right to an appeal when he left the country.

But Circuit Judge Andrew Hurwitz disagreed, writing in the panel’s decision Friday that the record shows Lopez-Angel didn’t voluntarily leave but rather was deported by the federal government.

“We therefore hold that an alien does not withdraw his appeal of a final removal order, including the appeal of the denial of a motion to reopen or reconsider, simply because he was involuntarily removed before the appeal was decided,” Hurwitz wrote in the decision. “Rather, we hold that [the BIA regulation] provides for withdrawal only when the petitioner engaged in conduct that establishes a waiver of the right to appeal.”

Hurwitz, an Obama appointee, wrote that immigrants’ legal rights would be eviscerated if the federal government could simply end an immigrant’s appeals process by deporting them.

The case is remanded to the BIA. A Justice Department spokesperson did not immediately respond to a request for comment.

Circuit Judge Kenneth Lee, a Trump appointee, wrote in the panel’s concurrence that language in federal statutes defining a withdrawal of an appeal is not as clearly written as it should be.

“Here, if ‘departure’ included forcible removals, it would have been unnecessary in [the statute] to state that a ‘departure’ includes the ‘deportation or removal’ of the person subject to the proceedings,” Lee wrote in his concurrence. “Indeed, this shows that the agency knew how to specify that ‘departure’ includes forcible removals when it intended to do so.”

Circuit Judge John Owens, also an Obama appointee, rounded out the panel.

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