- Court: 9th Circuit Court of Appeals Archives
- Area(s) of Law: Immigration
- Date Filed: 05-20-2015
- Case #: 11-73406
- Judge(s)/Court Below: Per Curiam; Circuit Judges Hawkins, Paez, and Berzon; Concurrence by Berzon
- Full Text Opinion
George Garcia was a lawful permanent resident who was convicted for theft charges, and sentenced to one year and four months in prison. In 2011, Garcia was charged with removability as an alien convicted of an aggravated felony. Garcia stated to an Immigration Judge (“IJ”) that he wished to proceed in English and that he understood his rights. Garcia argued that he was not removable because his conviction was not a categorical aggravated felony. The IJ advised Garcia that his prior theft conviction was an aggravated felony, making him ineligible for relief from removal, which led Garcia to waive his right to appeal to the Board of Immigration Appeals (“BIA”). Nonetheless, Garcia appealed to the BIA. The BIA dismissed Garcia’s appeal since he had waived his right. Garcia filed a motion to reconsider, arguing that when he waived his appeal he was confused, scared, had difficulty hearing the IJ, did not make a knowing, intelligent, and voluntary waiver of his right to appeal, and that English was not his first language. Garcia also argued that he did not believe his conviction was categorically an aggravated felony. The BIA declined reconsideration, holding that once a party knowingly and intelligently waives appeal, the BIA lacks jurisdiction. The Ninth Circuit reviewed the BIA’s denial, and held that Garcia's waiver was invalid because it was not considered and intelligently made. The panel also determined that the IJ incorrectly advised Garcia that his conviction was an aggravated felony, thus making him ineligible for relief from removal. The panel further found that the statute from which Garcia was convicted was overly broad, and Garcia’s conviction did not specify whether it was consensual or non-consensual taking of property. The panel therefore concluded that the BIA’s denial was an abuse of discretion. PETITION GRANTED and REMANDED.