                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                        MAY 8 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

JUAN CARLOS BELTRAN,                            No.    16-70938

                Petitioner,                     Agency No. A095-010-841

 v.
                                                MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General

                Respondent.

                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                       Argued and Submitted April 4, 2017
                              Pasadena, California

Before: PLAGER,** BEA, and OWENS, Circuit Judges.

      Juan Carlos Beltran petitions for review of the Board of Immigration

Appeals’ (“BIA”) decision dismissing his appeal due to waiver. Contrary to the

BIA’s conclusion, Beltran argues that his waiver was not considered and

intelligent. As explained below, we agree and therefore grant the petition and


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable S. Jay Plager, United States Circuit Judge for the U.S.
Court of Appeals for the Federal Circuit, sitting by designation.
remand.

      We review legal issues de novo. See Rodriguez-Echeverria v. Mukasey, 534

F.3d 1047, 1050 (9th Cir. 2008). Because the parties are familiar with the facts of

this case, we do not recount them here.

      The waiver of an appeal is not valid if it is not considered and intelligent.

See, e.g., Garcia v. Lynch, 786 F.3d 789, 792 (9th Cir. 2015) (per curiam). The

standard requires that the immigration judge (“IJ”) inform the alien of his or her

apparent eligibility to apply for any benefits, including the availability of voluntary

departure and the differences between pre-conclusion and post-conclusion

voluntary departure. See id.; 8 C.F.R. § 1240.11(a)(2).

      In this instance, Beltran’s waiver was not considered and intelligent because

the IJ failed to explain the differences between pre-conclusion and post-conclusion

voluntary departure. Beltran’s waiver was therefore invalid, and the BIA erred in

dismissing his appeal on the basis of waiver. We remand this matter to the BIA for

further proceedings.

      In light of this disposition, we do not reach Beltran’s remaining contentions.

      PETITION FOR REVIEW GRANTED; REMANDED.




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