9th Cir.;
14-72172

The court of appeals granted a petition for review of an order of the board of Immigration Appeals. The court held that an alien's departure from the United States, without more, could not be deemed to provide clear and convincing evidence of a “considered” and “intelligent” waiver of his right to appeal the finding that he was removable.

Gualberto Chavez-Garcia appeared before an immigration judge (IJ) to answer a charge that he was removable. At hearing, counsel for Chavez-Garcia informed the court that if Chavez-Garcia were ordered removed, he would reserve the right to appeal that decision. The IJ then addressed Chavez-Garcia directly, and advised him that his attorney had protected his right to appeal. The IJ subsequently issued a decision finding Chavez-Garcia removable and ordering him removed. Some two weeks later, Chavez-Garcia, through counsel, filed a written request for immediate execution of the IJ's order with removal to Mexico as soon as practicable to visit his terminally ill mother. He was removed the following day. Ten days thereafter, Chavez-Garcia's attorney appealed the IJ's order to the Board of Immigration Appeals (BIA).