               FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


GEORGE CAMACHO GARCIA,                   No. 11-73406
                    Petitioner,
                                         Agency No.
                v.                      A070-066-192

LORETTA E. LYNCH, Attorney
General,                                  OPINION
                      Respondent.


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

                Argued and Submitted
     February 11, 2015—San Francisco, California

                 Filed May 20, 2015

   Before: Michael Daly Hawkins, Richard A. Paez,
        and Marsha S. Berzon, Circuit Judges.

               Per Curiam Opinion;
            Concurrence by Judge Berzon
2                        GARCIA V. LYNCH

                           SUMMARY*


                           Immigration

    The panel granted George Camacho Garcia’s petition for
review from the Board of Immigration Appeals’ decision
denying his motion for reconsideration for lack of jurisdiction
on the ground that he validly waived appeal.

    The panel held that Garcia’s waiver of his right to appeal
to the BIA was not considered and intelligent, because his
decision was based upon an Immigration Judge’s incorrect
advice that his prior conviction was an aggravated felony and
that he was therefore ineligible for relief from removal. The
panel held that Garcia’s conviction for grand theft, in
violation of California Penal Code § 487(a), is not a
categorical aggravated felony because it is doubly overbroad,
where it permits a conviction for theft of labor, while the
generic definition of theft does not, and it also permits a
conviction for a consensual taking.

    Concurring, Judge Berzon agreed that Garcia’s appeal
waiver was invalid because his conviction was not an
aggravated felony, but wrote separately to explain that the
BIA made a more fundamental error in concluding that it
lacked jurisdiction. Judge Berzon wrote that the regulation
governing finality upon which the BIA relied, 8 C.F.R.
§ 1003.39, is flatly inconsistent with the Immigration and
Nationality Act, 8 U.S.C. § 1101(a)(47)(B), which provides
that a deportation order is final when the BIA affirms it or the

  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                     GARCIA V. LYNCH                         3

appeal period has expired, and further noted that the waiver
of the right to appeal is not mentioned as triggering finality.
Judge Berzon would hold that even if Garcia's waiver of
appeal were otherwise valid it would not render his removal
order final.


                         COUNSEL

K. Lee Hartzler, San Diego, California, for Petitioner.

Manuel Palau and Sara Bayram (argued), Department of
Justice, Civil Division, Office of Immigration Limitation,
Washington, D.C., for Respondent.


                         OPINION

PER CURIAM:

    An Immigration Judge (“IJ”) incorrectly advised George
Camacho Garcia that his prior conviction was for an
aggravated felony, and that he was therefore ineligible for
relief from removal. Hearing that advice, Garcia waived his
appeal to the Board of Immigration Appeals (“BIA”). But the
advice was wrong. As a result, Garcia’s waiver of his right
to appeal to the BIA was not considered and intelligent, and
the BIA should have granted Garcia’s motion for
reconsideration.

                              I.

   Garcia, a native and citizen of the Philippines, became a
lawful permanent resident in 2004 based on his marriage to
4                    GARCIA V. LYNCH

a U.S. citizen. In 2009, he pleaded guilty to four charges in
California state court, including a violation of California
Penal Code § 487(a), and was duly convicted. The
corresponding count in the complaint alleged that: “George
Camacho Garcia did willfully and unlawfully take money or
personal property of a value exceeding four hundred dollars
($400).” Garcia was sentenced to one year and four months
in prison for that conviction.

    In 2011, the Department of Homeland Security (“DHS”)
issued a notice to appear, charging Garcia with removability
as an alien convicted of an aggravated felony – specifically a
theft offense for which a sentence of at least one year was
imposed. See 8 U.S.C. §§ 1227(a)(2)(A)(iii); 1101(a)(43)(G).
During an initial hearing, Garcia heard a pre-recorded
message explaining the removal process, his appellate rights,
and his option to waive appeal. In an ensuing individual
colloquy with the IJ, Garcia said that he wished to proceed in
English, which was his “best language,” that he understood
his rights, and that he wanted time to obtain a lawyer. The
hearing was continued. At a subsequent hearing, Garcia told
the IJ he would proceed pro se and again confirmed that
English was his best language. Garcia had some difficulty
hearing the IJ, who asked Garcia to sit closer so he could
hear.

    At the second hearing, Garcia filed written pleadings
prepared with the assistance of his current counsel, arguing
that he was not removable because his section 487(a)
conviction was not a categorical aggravated felony.
Specifically, he maintained that section 487(a) was overbroad
in two ways: It criminalized both theft of labor and also forms
of consensual but unlawful taking of property, such as false
pretenses, neither of which is included in the generic
                          GARCIA V. LYNCH                                 5

definition of theft. After DHS filed copies of the abstract of
judgment and complaint from his criminal case, the IJ
concluded that Garcia’s section 487(a) conviction was an
aggravated felony. Looking to the complaint, the IJ held that
the conviction was for “taking the money or personal
property as such,” rather than theft of labor, but did not
address Garcia’s argument regarding consensual but unlawful
taking of property. Garcia was ordered removed.

    The IJ then explained that Garcia, who remained
unrepresented, had the right to appeal but could waive that
right. Garcia said he understood. When asked if he waived
appeal, Garcia responded: “I would say – so I am not eligible
for any relief?” The IJ told him he was not, explaining that,
despite Garcia’s marriage to a U.S. citizen, he would need a
waiver to adjust his status again, but, given his conviction, he
was ineligible for any waiver. The IJ then again confirmed
that Garcia understood his options regarding appeal. Garcia
said he did, and then stated – three times – that he agreed to
waive his right to appeal.1

    Garcia nevertheless filed a pro se notice of appeal with
the BIA, attaching, as his statement of reasons, a copy of his
previously filed written pleadings and an argument that his
conviction was not an aggravated felony. The BIA dismissed
the appeal, noting that Garcia had waived it and holding that,
as Garcia had “made no argument that the decision to waive
appeal was not a knowing and intelligent one,” the IJ’s
decision was administratively final upon waiver. The case
thus was “not properly before” it, the BIA asserted.


 1
   In response to the IJ’s questioning to ensure Garcia really intended to
waive appeal, Garcia stated “I will not appeal no more,” “I just voluntarily
deporting myself,” and “I’m waiving my right to an appeal.”
6                         GARCIA V. LYNCH

    Garcia, now represented by counsel, filed a short motion
to reconsider, arguing that “at the time he waived appeal, he
was confused, had a difficult time hearing the immigration
judge, and did not make a knowing, intelligent, and voluntary
waiver of his right to appeal.”2 In an accompanying
declaration, Garcia stated that he was scared and confused
during the hearing, English was not his first language, and he
had a hard time hearing the IJ. He also said that he did not
believe his conviction was categorically an aggravated felony,
and that he would therefore like to argue for his eligibility for
cancellation of removal.

    The BIA issued an opinion declining to grant
reconsideration. It noted that, although it ordinarily does not
have jurisdiction over motions when it has not assumed initial
jurisdiction over a case, it would consider the motion to
reconsider because it “challenge[d] the jurisdictional
determination in this case.” The BIA went on to reject as
inconsistent with the record the assertions in Garcia’s
declaration regarding the circumstances of the hearing,
noting: that he had told the IJ that he wanted to proceed in
English, as it was his best language; that the IJ had explained
Garcia’s appellate rights to him; that Garcia had confirmed he
had listened and understood; that the IJ had told Garcia to sit
closer to address his hearing difficulty; and that, at the end of
the proceeding, Garcia had unequivocally stated his intent to
waive appeal. The upshot, the BIA concluded, was this:
“Despite the respondent’s generalized assertions that he was
in some manner ‘confused’ about his proceedings, . . . the
record reflects that he understood he had a right to appeal, but
made a knowing and voluntary waiver of this right.”

  2
    Garcia styled his filing a motion to reopen, but the BIA construed it as
a motion to reconsider. Neither party challenges that construction.
                        GARCIA V. LYNCH                              7

Whether the IJ had given proper advice when he advised
Garcia that he was ineligible for relief from removal because
of his theft conviction was not addressed in the BIA opinion.

    Garcia timely petitioned for review of the BIA
reconsideration decision.

                                  II.

    We review the denial of a motion to reconsider for abuse
of discretion. Tadevosyan v. Holder, 743 F.3d 1250, 1252
(9th Cir. 2014). We will reverse such a denial “if it is
arbitrary, irrational, or contrary to law.” Yepremyan v.
Holder, 614 F.3d 1042, 1044 (9th Cir. 2010) (quoting Singh
v. I.N.S., 295 F.3d 1037, 1039 (9th Cir. 2002)) (internal
quotation marks omitted).

    The BIA has held that, once the parties waive appeal, it
lacks jurisdiction if the waiver is “knowingly and intelligently
made.” In re Rodriguez-Diaz, 22 I. & N. Dec. 1320, 1322
(BIA 2000) (citing United States v. Mendoza-Lopez, 481 U.S.
828, 840 (1987)).3 As DHS recognizes, it bears the burden to
establish a valid waiver by clear and convincing evidence.
See Gomez, 757 F.3d at 893–94.

    “Where ‘the record contains an inference that the
petitioner is eligible for relief from deportation,’ but the IJ


 3
   We note that Mendoza-Lopez indicated that an appeal waiver must be
“considered [and] intelligent” in order to satisfy due process.
Mendoza-Lopez, 481 U.S. at 840 (emphasis added); see also, e.g., United
States v. Gomez, 757 F.3d 885, 893 (9th Cir. 2014). In light of our
disposition of this case, we do not address whether this standard is
meaningfully different from the BIA’s articulation.
8                         GARCIA V. LYNCH

fails to ‘advise the alien of this possibility and give him the
opportunity to develop the issue,’ we do not [regard] an
alien’s waiver of his right to appeal his deportation order [as]
‘considered and intelligent.’”             United States v.
Pallares-Galan, 359 F.3d 1088, 1096 (9th Cir. 2004) (quoting
United States v. Muro-Inclan, 249 F.3d 1180, 1182 (9th Cir.
2001)) (some internal quotation marks omitted). In this case,
the IJ advised Garcia that he was not eligible for any relief
because his grand theft conviction was an aggravated felony.4
That advice was incorrect.

    As an initial matter, Garcia did sufficiently exhaust this
argument.      We are generally barred, “for lack of
subject-matter jurisdiction, from reaching the merits of a legal
claim not presented in administrative proceedings below.”
Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).
However, “[w]e do not employ the exhaustion doctrine in a
formalistic manner.” Ren v. Holder, 648 F.3d 1079, 1083
(9th Cir. 2011) (quoting Figueroa v. Mukasey, 543 F.3d 487,
492 (9th Cir. 2008)) (internal quotation marks omitted). “‘A
petitioner cannot satisfy the exhaustion requirement by
making a general challenge to the IJ’s decision,’” but also
“need not . . . raise the precise argument below.”
Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 873 (9th Cir.
2008) (quoting Zara v. Ashcroft, 383 F.3d 927, 930 (9th Cir.
2004)).




    4
    The IJ’s determination that Garcia’s conviction was an aggravated
felony played a role in two distinct issues that arose at the hearing. It was
the basis for the charge of removability which the IJ sustained, and it also
indicated to the IJ that Garcia was not eligible for relief from removal.
Only the latter issue is before us on this petition for review.
                          GARCIA V. LYNCH                                9

    Here, Garcia’s brief motion to reconsider and
accompanying declaration argued that Garcia “did not make
a knowing, intelligent, and voluntary waiver of his right to
appeal,” reiterated the argument made before the IJ and in the
notice of appeal that the conviction was not an aggravated
felony, and asserted that, therefore, Garcia was potentially
eligible for relief from removal. Garcia did not spell out in so
many words that his waiver should be deemed invalid
because the IJ incorrectly concluded that his conviction was
an aggravated felony and so failed to advise him of potential
relief from removal. But Garcia did articulate each essential
part of the contention he now raises. As a result, that “issue
was before the BIA such that it had the opportunity to correct
its error.” Figueroa, 543 F.3d at 492. “Our precedent
requires nothing more.” Id. (brackets and internal quotation
marks omitted).

    Garcia’s declaration indicated that, absent an aggravated
felony, he was potentially eligible for cancellation of
removal, 8 U.S.C. § 1229b, while on appeal Garcia has
argued that, absent an aggravated felony, he was potentially
eligible to readjust his status with an 8 U.S.C.
§ 1182(h)(1)(B) waiver. But that difference is immaterial for
present purposes. DHS has made no argument, apart from its
contention that his conviction was an aggravated felony, as to
the merits of either form of relief, nor has it suggested that
the difference between them should matter for exhaustion
purposes. Indeed, Garcia may have been eligible for both.5


   5
      Nothing in the record before the IJ negates Garcia’s apparent
eligibility, absent an aggravated felony, for both forms of relief from
removal. See United States v. Lopez-Velasquez, 629 F.3d 894, 896 (9th
Cir. 2010) (en banc) (holding that apparent eligibility exists where the
record “raises a reasonable possibility that the petitioner may be eligible
10                         GARCIA V. LYNCH

    In sum, Garcia sufficiently exhausted the issue we decide:
that his waiver was invalid because the IJ incorrectly advised
him that his conviction was an aggravated felony and that, for
that reason, he was ineligible for relief from removal.

   On the merits, we agree with Garcia that his conviction
was not an aggravated felony. “In making a determination as



for relief”) (internal quotation mark omitted). Garcia would have been
eligible for cancellation of removal upon a showing that he “(1) ha[d] been
an alien lawfully admitted for permanent residence for not less than 5
years, [and] (2) ha[d] resided in the United States continuously for 7 years
after having been admitted in any status.” 8 U.S.C. § 1229b(a). At the
time of his removal proceedings, Garcia had been a permanent resident for
well over five years. See Padilla-Romero v. Holder, 611 F.3d 1011, 1012,
1014 (9th Cir. 2010). Although the record is somewhat unclear on this
point, it appears that Garcia had also continuously resided in the United
States for seven years prior to committing the offense for which he was
held removable, see 8 U.S.C. § 1229b(d)(1), having been admitted in a
nonimmigrant status as early as 1996. Similarly, Garcia was apparently
eligible for a waiver under § 1182(h)(1)(B) in conjunction with an
application to adjust his status again. See Matter of Rivas, 26 I. & N. Dec.
130, 132–33 (BIA 2013). For the § 1182(h)(1)(B) waiver, Garcia would
need to show “extreme hardship to [his] United States citizen or lawfully
resident spouse, parent, son, or daughter.” 8 U.S.C. § 1182(h)(1)(B). The
record indicates that Garcia was, at least at one point, married to a U.S.
citizen, but the IJ did not further develop the record as to the status of
Garcia’s relationship or any potential extreme hardship, because of his
conclusion that Garcia had been convicted of an aggravated felony. Cf.
United States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir. 2000). Finally,
Garcia was apparently eligible to again adjust his status, assuming that he
was, indeed, still married to the U.S. citizen. See In re Mendez-Moralez,
21 I. & N. Dec. 296, 297-98 (BIA 1996); Agyeman v. I.N.S., 296 F.3d 871,
878 (9th Cir. 2002). Insofar as there are gaps in the record regarding
Garcia’s eligibility for relief, the evident reason is that the IJ truncated any
inquiry into Garcia’s precise circumstances by ruling that, whatever those
circumstances were, Garcia had been convicted of an aggravated felony
and so was ineligible for relief.
                      GARCIA V. LYNCH                        11

to whether a prior conviction qualifies as an aggravated
felony for federal deportation purposes, we employ the
analytical model set forth in Taylor v. United States, 495 U.S.
575 [(1990)].” Pallares-Galan, 359 F.3d at 1099.

        Under Taylor’s categorical approach, the issue
        is not whether the actual conduct constituted
        an aggravated felony, but whether the full
        range of conduct encompassed by the state
        statute constitutes an aggravated felony, and
        we look only to the fact of conviction and the
        statutory definition of the prior offense to
        make this determination. If we determine that
        the statute which the defendant was found to
        have violated is broader in scope than the
        federal provision—that the state statute
        proscribes not only conduct that would
        constitute an aggravated felony but also
        conduct that would not—then the state
        conviction may not be used, except under a
        modified categorical approach. Under the
        modified categorical approach, the conviction
        may be used only if the record contains
        documentation or judicially noticeable facts
        that clearly establish that the conviction is a
        predicate conviction.

Id. (brackets, citations, and internal quotation marks omitted).

   As was clear at the time of Garcia’s hearing, a conviction
under California Penal Code § 487(a) is not categorically an
aggravated felony because, as Garcia argues, section 487(a)
12                        GARCIA V. LYNCH

is doubly overbroad.6 First, it permits a conviction for theft
of labor, while the generic definition of theft does not. See
United States v. Espinoza-Cano, 456 F.3d 1126, 1131 (9th
Cir. 2006). Second, section 487(a) incorporates the general
definition of theft, which is found at California Penal Code
§ 484(a).7 An individual may be convicted of theft under
section 484(a), and therefore grand theft under section 487(a),
even if the victim consented to transfer his property. For
example, the California statutes cover deprivation of property
by false pretenses, which does not constitute theft under the
generic definition. See Carrillo-Jaime v. Holder, 572 F.3d
747, 751–53 (9th Cir. 2009). Under that definition, theft is
“[1] a taking of property or an exercise of control over


  6
    The version of the statute in effect at the time of Garcia’s conviction
provided, in relevant part, “Grand theft is theft committed in any of the
following cases: (a) When the money, labor, or real or personal property
taken is of a value exceeding four hundred dollars ($400) . . .” Cal. Penal
Code § 487 (2009). The statute has since been amended to raise the value
establishing grand theft to $950. See Cal. Penal Code § 487(a) (2014).
  7
    “[Section] 484(a) defines theft in general,” while “[s]ection 487 . . .
describes certain circumstances in which theft will constitute grand theft.”
United States v. Corona-Sanchez, 291 F.3d 1201, 1206–07 (9th Cir. 2002)
(en banc), superseded by statute on other grounds as recognized in United
States v. Gomez-Mendez, 486 F.3d 599, 604–05 (9th Cir. 2007) (footnote
omitted). Section 484(a) provides, in relevant part, “Every person who
shall feloniously steal, take, carry, lead, or drive away the personal
property of another, or who shall fraudulently appropriate property which
has been entrusted to him or her, or who shall knowingly and designedly,
by any false or fraudulent representation or pretense, defraud any other
person of money, labor or real or personal property, or who causes or
procures others to report falsely of his or her wealth or mercantile
character and by thus imposing upon any person, obtains credit and
thereby fraudulently gets or obtains possession of money, or property or
obtains the labor or service of another, is guilty of theft.” Cal. Penal Code
§ 484(a).
                          GARCIA V. LYNCH                              13

property [2] without consent [3] with the criminal intent to
deprive the owner of rights and benefits of ownership, even
if such deprivation is less than total or permanent.” Id. at 750
(alterations in original) (emphasis added) (quoting
Corona-Sanchez, 291 F.3d at 1205) (internal quotation marks
omitted).

    The IJ nevertheless found that the conviction was an
aggravated felony, applying the modified categorical
approach. In doing so, he addressed only the first type of
overbreadth, not whether the conviction was for a consensual
or non-consensual taking.

    The modified categorical approach does not establish that
Garcia was convicted of a non-consensual taking. “In the
context of a guilty plea, the modified categorical approach
inquires whether a guilty plea to an offense defined by a
nongeneric statute necessarily admitted elements of the
generic offense.” Alvarado v. Holder, 759 F.3d 1121, 1130
(9th Cir. 2014) (internal quotation marks omitted). Nothing
in the conviction documents in the record – namely, the
abstract of judgment and criminal complaint – establishes that
Garcia’s conviction was for non-consensual grand theft.8

    The complaint charged that Garcia “did willfully and
unlawfully take money or personal property.” As the
California Supreme Court recently reiterated, in 1927 the
California legislature consolidated the crimes previously
known as larceny, false pretenses, and embezzlement,


  8
    As the question of divisibility was not raised in the briefs and oral
argument, and because we reverse on other grounds, we assume for the
purposes of this opinion, without deciding, that sections 487(a) and 484(a)
are divisible. See Rendon v. Holder, 764 F.3d 1077, 1085 (9th Cir. 2014).
14                    GARCIA V. LYNCH

inherited from English common and statutory law, into what
is now section 484(a). People v. Williams, 57 Cal. 4th 776,
785 (2013). One distinction among these crimes was that
larceny required “a ‘trespassory taking,’ which is a taking
without the property owner’s consent,” while false pretenses,
for example, “involves the consensual transfer of possession
as well as title of property.” Id. at 788 (emphases omitted);
see also Carrillo-Jaime, 572 F.3d at 752. This change
affected the wording of charging documents:

       “The purpose of the consolidation was to
       remove the technicalities that existed in the
       pleading and proof of these crimes at common
       law. Indictments and informations charging
       the crime of ‘theft’ can now simply allege an
       ‘unlawful taking.’ . . . Juries need no longer
       be concerned with the technical differences
       between the several types of theft, and can
       return a general verdict of guilty if they find
       that an ‘unlawful taking’ has been proved. . . .
       The elements of the several types of theft
       included within section 484 have not been
       changed, however, and a judgment of
       conviction of theft, based on a general verdict
       of guilty, can be sustained only if the evidence
       discloses the elements of one of the
       consolidated offenses.”

Williams, 57 Cal. 4th at 785–86 (emphasis added) (quoting
People v. Ashley, 42 Cal. 2d 246, 258 (1954)). In other
words, the allegation in the complaint in this case, that Garcia
did “unlawfully take” property, charges theft in violation of
section 484(a), without further indicating which of “the
several types of theft” is specifically charged. Id. Thus, the
                      GARCIA V. LYNCH                        15

allegations in the complaint do not establish that Garcia was
charged and convicted of non-consensual theft, namely
larceny, rather than consensual but unlawful taking of
property, such as by false pretenses.

    United States v. Rivera, 658 F.3d 1073 (9th Cir. 2011), is
not to the contrary. In Rivera, we concluded that the
defendant’s plea to a charge that he “did unlawfully . . . steal
take and carry away” personal property narrowed the
conviction to the generic limits, namely a non-consensual
taking. Id. at 1077–78. Although the charge in Rivera did
not expressly indicate that the theft was non-consensual, its
language closely tracked the portion of section 484(a) that
“reflects” the common-law crime of larceny: “the felonious
stealing, taking, carrying, leading, or driving away of the
personal property of another.” Williams, 57 Cal. 4th at
781–82. Here, by contrast, the charging language is fully
consistent with non-consensual theories of guilt under section
484(a). See id. at 785–86.

    DHS points to language in a different count of the
complaint, of which Garcia was not convicted, charging
Garcia with using the same victim’s personally identifying
information without her authorization. The most likely
reading of the complaint, DHS suggests, is that the two
counts are based upon the same conduct and that, therefore,
the theft was without consent. That possible inference,
however, is insufficient to establish that Garcia was convicted
of generic theft. Alvarado, 759 F.3d at 1131.

    For one thing, the taking of different property from the
same victim could be covered in a single complaint. For
another, Garcia was not convicted of the “without
authorization” count, a circumstance that could indicate he
16                       GARCIA V. LYNCH

was unwilling to plead guilty to taking the property without
authorization or that the prosecution was not confident it
could prove that element. So, although one perhaps could
infer that the two counts arose from the same conduct, such
an inference is in no way compelled. As we held in
Alvarado, 759 F.3d at 1131, a bare inference of this sort does
not satisfy the modified categorical approach.

     In sum, the IJ “believed, incorrectly, that [Garcia’s]
conviction . . . constituted a[n] . . . aggravated felony,” and so
“erred when []he told [Garcia] that no relief was available”
for that reason. Pallares-Galan, 359 F.3d at 1096. In light of
the IJ’s error, Garcia’s “waiver of his right to appeal was not
considered and intelligent.” Id. (internal quotation marks
omitted). It follows that the BIA’s denial of the motion to
reconsider was contrary to law and so an abuse of discretion.
Yepremyan, 614 F.3d at 1044.9

     Petition GRANTED and REMANDED.



BERZON, Circuit Judge, concurring:

    I join the per curiam opinion, as I entirely agree that
George Camacho Garcia’s appeal waiver was invalid because
his conviction was not an aggravated felony. I write
separately to explain an additional, more fundamental
problem with the Board of Immigration Appeal’s (“BIA”)
decisions in this case: In my view, the regulation upon which
the BIA relied for its conclusion that it lacked jurisdiction is

  9
    Because we grant the petition on this basis, we do not reach Garcia’s
other contentions.
                          GARCIA V. LYNCH                               17

flatly inconsistent with the Immigration and Nationality Act
(“INA”).

    Routinely, when an Immigration Judge (“IJ”) renders a
decision, he asks the respondent and the Department of
Homeland Security (“DHS”) to decide, then and there,
whether to reserve or waive the right to appeal. See In re
Rodriguez-Diaz, 22 I. & N. Dec. 1320, 1323 n.2 (BIA 2000)
(advising IJs to inform respondents: “If you want to appeal
my decision, or if you want to think about appeal and decide
later, you must reserve appeal now.”). If the parties both
waive appeal, and the waiver is otherwise valid, then, the BIA
maintains, it “do[es] not have jurisdiction over the decision of
[the] Immigration Judge.” Id. at 1322 (citing Matter of Shih,
20 I. & N. Dec. 697 (BIA 1993)).1 That is so, the BIA says,
because “[w]henever the right to appeal is [validly] waived,
the decision of the Immigration Judge becomes final and may
be implemented immediately.” Id.; see also Shih, 20 I. & N.
Dec. at 699 (holding that, “[b]ecause the immigration judge’s
decision is final [upon appeal waiver], the applicant’s
subsequent attempt to withdraw his waiver by filing a Notice
of Appeal . . . has no effect” and the BIA therefore “lacks
jurisdiction to adjudicate the case.”).2


 1
   As the per curiam opinion notes, the BIA does require that “any waiver
be knowingly and intelligently made.” Rodriguez-Diaz, 22 I. & N. Dec.
at 1322.
 2
   Aside from the concerns discussed in the text, it is dubious whether the
appeal-waiver rule properly goes to the BIA’s jurisdiction for two reasons.
First, the Supreme Court has rejected “a reflexive extension to agencies
of the very real division between the jurisdictional and nonjurisdictional
that is applicable to courts.” City of Arlington, Tex. v. F.C.C., 133 S. Ct.
1863, 1868 (2013). The analogy to the jurisdiction of courts – that is, to
“the question whether [a court has] the power to decide at all,” id.
18                         GARCIA V. LYNCH

    To establish that an IJ’s decision is final once appeal has
been validly waived, both Rodriguez-Diaz and Shih cited to
former regulations to that effect. The regulations have been
reorganized since then, but the current regulations say the
same thing: An IJ’s decision “becomes final upon waiver of
appeal or upon expiration of the time to appeal if no appeal is
taken[,] whichever occurs first.” 8 C.F.R. § 1003.39 (2014);
see also 8 C.F.R. § 1241.1(b) (2014) (one of several




(emphasis omitted) – is particularly inapt where, as here, the agency
disclaims authority based only on its own regulation. “Rules of
jurisdiction in a sense speak from a position outside the court system and
prescribe the authority of the courts within the system.” Black’s Law
Dictionary 980 (10th ed. 2014) (quoting Fleming James Jr., Geoffrey C.
Hazard Jr. & John Leubsdorf, Civil Procedure § 2.1, at 55 (5th ed. 2001))
(internal quotation mark omitted). By contrast, a BIA regulation, at least
one that does not purport to interpret a statute, is, in effect, the Attorney
General telling himself what he may or may not do; presumably, he could
simply change the rules if he were so inclined. That being the case, such
regulations are more like a court’s internal rules, such as our own standing
orders, than external constraints that could properly be conceived of as
jurisdictional.

     Second, even if a regulation could be jurisdictional, the appeal-waiver
rule would not so qualify. See Irigoyen-Briones v. Holder, 644 F.3d 943,
949 (9th Cir. 2011) (holding that the 30-day deadline to file a notice of
appeal with the BIA was not jurisdictional). The Supreme Court has
“urged that a rule should not be referred to as jurisdictional unless it
governs a court’s adjudicatory capacity, that is, its subject-matter or
personal jurisdiction.” Henderson ex rel. Henderson v. Shinseki, 131 S.
Ct. 1197, 1202 (2011). “Among the types of rules that should not be
described as jurisdictional are . . . ‘claim-processing rules’ . . . that seek
to promote the orderly progress of litigation by requiring that the parties
take certain procedural steps at certain specified times.” Id. at 1203. A
requirement that parties must affirmatively reserve appeal at the hearing
is a “quintessential claim-processing rule[].” Id.
                          GARCIA V. LYNCH                              19

conditions upon which an order of removal becomes final is
“waiver of appeal by the respondent”).3

    In this case, the BIA concluded that it had no jurisdiction
because Garcia validly waived appeal. “[T]he Immigration
Judge’s decision became administratively final upon the
respondent’s waiver of the right to appeal,” the BIA held, and
so the case was “not properly before” it. It cited section
1003.39, Rodriguez-Diaz and Shih.4 The BIA reaffirmed its
conclusion that it lacked jurisdiction in its decision denying
the motion to reconsider.

    The problem with this reasoning – aside from the
invalidity of the waiver, for the reasons covered in the per
curiam opinion – is that the regulation governing finality,
8 C.F.R. § 1003.39, on which the BIA relied, is flatly
inconsistent with the INA, the governing statute.5 8 U.S.C.


 3
   Rodriguez-Diaz and Shih relied principally on 8 C.F.R. § 3.39 (2000
and 1993, respectively). Current 8 C.F.R. § 1003.39 (2014) contains
identical language.
 4
   The BIA also cited the last sentence of 8 C.F.R. § 1003.3(a)(1), which
provides that “[a] Notice of Appeal may not be filed by any party who has
waived appeal pursuant to § 1003.39.”
     5
     We have jurisdiction to consider Garcia’s argument on this point.
Unlike in Stone v. I.N.S., 514 U.S. 386 (1995), Garcia is not asking us to
reverse or vacate the earlier decision, as to which he did not petition for
review. Instead, he petitioned for review of, and directly challenges, only
the denial of his motion to reconsider. The BIA’s original jurisdictional
holding was the necessary predicate to its opinion denying the motion to
reconsider. “A motion to reconsider necessarily reaches the prior decision
because it must specify the errors of fact or law in the prior Board
decision.” Toufighi v. Mukasey, 538 F.3d 988, 996 (9th Cir. 2008)
(alteration and internal quotation marks omitted). “[A] petitioner who
20                        GARCIA V. LYNCH

§ 1101(a)(47)(B) provides that an “order of deportation”
“shall become final upon the earlier of (i) a determination by
the Board of Immigration Appeals affirming such order; or
(ii) the expiration of the period in which the alien is permitted
to seek review of such order by the Board of Immigration
Appeals.” Id. The definition also applies to an order of
removal, such as the one at issue in this case. See Ocampo v.
Holder, 629 F.3d 923, 927 (9th Cir. 2010) (citing Singh v.
Gonzales, 499 F.3d 969, 979 (9th Cir. 2007)). So, according
to the INA’s terms, there are two events which can trigger the
finality of a removal order – a BIA affirmance or the running
of the appeal period. The waiver of the right to appeal is not
mentioned as triggering finality.

    Ocampo held 8 C.F.R. § 1241.1(f), which provides for the
finality, under several circumstances, of an alternate removal
order issued in connection with a grant of voluntary
departure, to be inconsistent with section 1101(a)(47)(B) and




only seeks review of a BIA order on reconsideration foregoes any more
favorable standard of review that might have applied had the petitioner
sought review of the BIA’s underlying decision on the merits,” but
“without some appraisal of the underlying merits, it would not be possible
for an appellate court to evaluate whether the BIA abused its discretion in
denying a motion to reconsider the merits.” Castro v. Attorney Gen. of
U.S., 671 F.3d 356, 364–65 (3d Cir. 2012); see also Narine v. Holder,
559 F.3d 246, 251 (4th Cir. 2009); Esenwah v. Ashcroft, 378 F.3d 763,
764 (8th Cir. 2004). Moreover, although Garcia did not exhaust his
challenge to the appeal-waiver regulation, “[b]ecause the BIA has no
authority to declare a regulation invalid, ‘the exhaustion doctrine does not
bar review of a question concerning the validity of [a governing]
regulation because of a conflict with a statute.’” Coyt v. Holder, 593 F.3d
902, 905 (9th Cir. 2010) (quoting Espinoza-Gutierrez v. Smith, 94 F.3d
1270, 1273–74 (9th Cir. 1996)).
                          GARCIA V. LYNCH                              21

therefore invalid.6 The statutory definition of finality, we
said, was “clear and unambiguous that removal orders
become final only in these two circumstances, so there [wa]s
no need to resort to” a regulation providing a third alternative
“for clarification.” Ocampo, 629 F.3d at 927. Applying the
regulation’s third alternative to trigger finality in the face of
the statutory definition would, Ocampo held, violate the rule
that “‘[a] regulation may not serve to amend a statute, nor add
to the statute something which is not there,’” by “effectively
amending 8 U.S.C. § 1101(a)(47)(B) to afford an additional
circumstance when removal orders become final that is not
expressed in the statute.” Id. (quoting Cal. Cosmetology
Coal. v. Riley, 110 F.3d 1454, 1460 (9th Cir. 1997)).

    As noted above, one of the other subsections of that same
regulation, 8 C.F.R. § 1241.1(b), provides that a removal
order becomes final “[u]pon waiver of appeal by the
respondent.” Id. The BIA in this case relied on the
equivalent language of 8 C.F.R. § 1003.39, which provides
that “the decision of the Immigration Judge becomes final
upon waiver of appeal.” Id. Ocampo’s reasoning applies
equally to each of these provisions. Each is inconsistent with
the “clear and unambiguous” statutory definition of finality,



  6
    8 C.F.R. § 1241.1 provides, in relevant part: “An order of removal
made by the immigration judge at the conclusion of proceedings under
section 240 of the Act shall become final . . . (f) If an immigration judge
issues an alternate order of removal in connection with a grant of
voluntary departure, upon overstay of the voluntary departure period, or
upon the failure to post a required voluntary departure bond within 5
business days. If the respondent has filed a timely appeal with the Board,
the order shall become final upon an order of removal by the Board or the
Attorney General, or upon overstay of the voluntary departure period
granted or reinstated by the Board or the Attorney General.”
22                   GARCIA V. LYNCH

Ocampo, 629 F.3d at 927, as each adds a finality trigger that
does not appear in the statute.

    Congress, I recognize, did not specify in what “period” a
noncitizen would be “permitted to seek review.” 8 U.S.C.
§ 1101(a)(47)(B)(ii).         But the statutory provision
unambiguously refers to some “period,” that is, some time
span with ascertainable starting and ending dates. Consistent
with the express congressional directive to “issue regulations
with respect to . . . the time period for the filing of
administrative appeals in deportation proceedings,”
Immigration Act of 1990, Pub. L. No. 101-649, § 545(d)(2),
104 Stat. 4978, 5066 (1990) (emphasis added), the
regulations provide that the notice of appeal must be filed
within 30 days from the issuance of the IJ’s decision.
8 C.F.R. § 1003.38(b). In other words, the “period in which
the alien is permitted to seek review,” 8 U.S.C.
§ 1101(a)(47)(B)(ii), is defined by the regulation: 30 days. At
the expiration of that period, not earlier, the order becomes
final unless there has been an appeal.

    DHS maintains before us that the term “is permitted” in
the statute is sufficiently ambiguous to admit of the
regulatory provision for finality upon waiver of appeal, or
failure to reserve appeal, immediately after the IJ’s decision
is announced. I discern no such ambiguity. The statute
requires that there be some period of time “permitted” in
which a noncitizen may seek review before the BIA. There
is no reasonable construction of the statutory language
allowing a noncitizen no time to seek review, but instead
asking him to declare his intention regarding appeal
immediately upon issuance of the IJ’s opinion.
                      GARCIA V. LYNCH                        23

    DHS also argues that 8 U.S.C. § 1101(a)(47) simply
speaks to a different question than do the regulations –
namely, finality for the purposes of judicial review, rather
than finality for the purposes of appeal to the BIA. It points
out that this statutory subsection was added as part of section
440 of the Antiterrorism and Effective Death Penalty Act of
1996. Section 440(a) precludes judicial review of “[a]ny final
order of deportation” based on certain criminal offenses, and
is immediately followed by section 440(b), which provides
the definition of “final order of deportation” codified at
8 U.S.C. § 1101(a)(47). Pub. L. No. 104-32, 110 Stat. 1214.
This statutory context, the government contends, indicates
that Congress defined finality only for purposes of judicial
review.

    Contrary to DHS’s inventive argument, however, we have
applied the statutory definition of finality outside the context
of judicial review. See Ocampo, 629 F.3d at 926–27;
Alali-Amin v. Mukasey, 523 F.3d 1039, 1041–42 (9th Cir.
2008). Ocampo, for example, applied the definition to the
question whether a motion to reopen was timely filed with the
BIA; finality for the purposes of judicial review was not at
issue in that case. See Ocampo, 629 F.3d at 926–27.

    I recognize that holding the regulation at issue here
invalid would have some troubling implications: A detained
noncitizen who really does wish to waive appeal so he can be
removed as soon as possible may instead be required to
remain in detention for 30 days until the time to appeal has
expired. See 8 U.S.C. § 1231(a)(1) (DHS shall remove a
noncitizen who has been ordered removed with the “removal
period,” which begins, as relevant here, when “the order of
removal becomes administratively final”); but see 8 C.F.R.
§ 241.7 (DHS may “permit an alien ordered removed . . . to
24                    GARCIA V. LYNCH

depart at his or her own expense to a destination of his or her
own choice.”).

    But there are countervailing considerations as well. Most
notably, the appeal waiver system in immigration court raises
some troubling due process concerns. Noncitizens – often
unrepresented – are asked during the course of the hearing to
make a binding decision whether to pursue an appeal. This
in-the-moment procedure is not at all how appeal waivers are
obtained in other contexts. In federal criminal cases, for
example, this court has permitted appeal waivers as part of
plea bargains in reliance, in part, on the defendant having
sufficient time to consider the matter. See, e.g., United States
v. Morris, 633 F.3d 885, 888–89 (9th Cir. 2011) (holding that
the government’s “take it or leave it plea offer,” including a
plea waiver, did not violate due process because the
defendant had “several weeks to consider the offer,” and this
“timeframe [was] not problematic”).

     It may well be that due process requires time to think and
consult with counsel before appeal rights can be validly
waived. Indeed, the Supreme Court has indicated that such
waivers must be “considered.”              United States v.
Mendoza-Lopez, 481 U.S. 828, 840 (1987). This case
illustrates the importance of such time to think and consult.
Garcia consistently sought to challenge the basis of his
removal proceedings, asking for time to obtain an attorney,
filing written pleadings including legal arguments that his
conviction was not an aggravated felony, and, ultimately,
filing an appeal. Although the record suggests that he
understood the choice before him regarding the appeal, there
is good reason to think that he made a spur-of-the-moment
decision, in the heat of an intimidating hearing at which he
was told he had no hope for relief. It is most likely, given his
                      GARCIA V. LYNCH                         25

actions before and after the hearing, that Garcia would not
have made that decision had he been afforded time to
consider the choice in light of the IJ’s decision, and to consult
counsel. Although, under our precedents, his waiver was not
valid because of the IJ’s improper advice regarding relief,
even had the advice been correct, I would be troubled by the
pressure brought to bear upon him, an unrepresented
individual, to make such a weighty decision without even a
night to sleep on it.

    Furthermore, again unlike appeal waivers in plea
bargains, it is not clear there is any quid pro quo for the type
of waiver that was sought here. Unless the noncitizen is
detained and seeking a swift removal, it is hard to see what he
gets in return for his waiver. In federal criminal cases, by
contrast, plea agreements, including appeal waivers, are
“contractual in nature.” United States v. Jeronimo, 398 F.3d
1149, 1153 (9th Cir. 2005), overruled on other grounds by
United States v. Jacobo Castillo, 496 F.3d 947, 957 (9th Cir.
2007) (en banc).

    Accepting Garcia’s argument that the regulations are
inconsistent with the INA would avoid these constitutional
concerns. The due process concerns might also be addressed
by adding some protections to the waiver process, including
some lapse of time from the IJ’s decision, accompanied by
advice to consult counsel before deciding whether to waive
appeal. With such additions to the waiver process, it is
possible that, as a prudential, discretionary matter, the BIA
could decline to consider an appeal because of a waiver. But
whether the BIA could, with such protections, be permitted
to choose not to hear an appeal is a very different question
from whether it is barred from doing so, as the BIA held in
26                   GARCIA V. LYNCH

this case. Cf. Singh v. Holder, 771 F.3d 647, 653 (9th Cir.
2014).

    In sum, I would hold, in the alternative, that, even if
Garcia’s waiver of appeal were otherwise valid, that waiver
would not render Garcia’s removal order final. For that
reason as well, the BIA abused its discretion in not
reconsidering its holding that it lacked jurisdiction over this
case.
