               FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


SILVANO LOPEZ-ANGEL,                      No. 16-72246
                         Petitioner,
                                         Agency No.
                v.                      A044-076-538

WILLIAM P. BARR, Attorney General,      ORDER AND
                       Respondent.       AMENDED
                                          OPINION

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

       Argued and Submitted October 16, 2019
               San Diego, California

              Filed December 27, 2019
              Amended March 17, 2020

     Before: Andrew D. Hurwitz, John B. Owens,
         and Kenneth K. Lee, Circuit Judges.

                       Order;
              Opinion by Judge Hurwitz;
              Concurrence by Judge Lee
2                    LOPEZ-ANGEL V. BARR

                          SUMMARY *


                           Immigration

   The panel filed: 1) an order granting the government’s
motion to amend the majority opinion; and 2) an amended
opinion granting Silvano Lopez-Angel’s petition for review
of a decision of the Board of Immigration Appeals and
remanding. In the amended opinion, the panel held that
Lopez’s removal from the United States while his appeal
was pending before the BIA did not withdraw his appeal
under 8 C.F.R. § 1003.4.

    The panel observed that the withdrawal sanction in
§ 1003.4 is triggered by an alien’s “departure,” from this
country and that the regulation does not distinguish between
volitional and non-volitional departures. The panel also
noted that the BIA has recognized that an unlawful removal
does not a constitute a § 1003.4 departure, but has not
addressed whether a lawful removal would withdraw an
appeal. However, in Madrigal v. Holder, 572 F.3d 239 (6th
Cir. 2009), the Sixth Circuit held that § 1003.4 applies only
when the right to appeal is relinquished by the alien’s own
volitional conduct, not solely that of the government.

    The panel agreed, concluding that the analysis in
Madrigal is consistent with this court’s interpretation of a
similar regulation, 8 C.F.R. § 1003.2(d), which states that
any departure after the filing a motion to reopen or
reconsider constitutes a withdrawal of such motion. In Coyt

    *
      This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                   LOPEZ-ANGEL V. BARR                       3

v. Holder, 593 F.3d 902 (9th Cir. 2010), this court held that
involuntary removal of a petitioner while a motion to reopen
was pending did not withdraw the motion under § 1003.2(d).
Rather, the court reasoned that it would completely
eviscerate the statutory right to reopen if the agency deems
a motion to reopen constructively withdrawn whenever the
government removes a petitioner while his motion is
pending. Likewise, the panel here concluded that the
statutory right to file an appeal would be undermined if the
government could simply terminate an appeal by removing
the petitioner. The panel rejected the government’s
argument that Lopez was denied only an administrative
appeal, explaining that, by rendering the IJ’s decision final,
the BIA effectively barred any further appellate review of
the underlying merits because they were not administratively
exhausted. Accordingly, the panel held that § 1003.4
provides for withdrawal only when the petitioner engaged in
conduct that establishes a waiver of the right to appeal.

    Addressing whether Lopez otherwise waived his right to
appeal, the panel concluded that there was no evidence that
he voluntarily left the country; rather, the record established
that the government removed him. The panel therefore held
that Lopez did not withdraw his appeal and granted the
petition for review so that the BIA could reinstate his appeal.

    Concurring, Judge Lee agreed that petitioner did not
withdraw his appeal, but reached that conclusion differently.
Judge Lee observed it was unclear whether the Sixth
Circuit’s decision in Madrigal was based on the regulation
itself or on constitutional concerns. In any event, Judge Lee
wrote that he did not believe that the due process concerns
in Madrigal applied here because the petitioner in Madrigal
filed a motion to stay, but the government removed her while
the stay was pending. Here, however, there was no evidence
4                 LOPEZ-ANGEL V. BARR

that Lopez had moved for a stay. Because Lopez had not
done all that he could to avail himself of the process, Judge
Lee concluded that principles of fundamental fairness would
not necessarily be violated if § 1003.4 applied here.
Nonetheless, Judge Lee agreed with the majority’s
conclusion based on a reasonable reading of § 1003.4 to
interpret “departure” not to include a forcible removal.


                        COUNSEL

Lauren Cusitello (argued), ABA Immigration Justice
Project, San Diego, California, for Petitioner.

Victoria Braga (argued), Trial Attorney; Andrew N.
O’Malley, Senior Litigation Counsel; Cindy S. Ferrier,
Assistant Director; Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C.; for Respondent.


                         ORDER

    Respondent’s motion to amend the opinion, Dkt. 43, is
granted. The majority opinion is amended with the addition
of the following footnote immediately after <The statutory
right would be undermined if the government could simply
terminate an appeal by removing a petitioner.> on page 9 of
the slip opinion:

       The government argues that Lopez was
       denied only an administrative appeal. See 8
       C.F.R. § 1003.1(b)(3). But, by rendering the
       IJ’s decision final, the BIA effectively barred
       any further appellate review of the
                  LOPEZ-ANGEL V. BARR                      5

       underlying merits because they were not
       administratively exhausted. See Barron v.
       Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004);
       see also Montano-Vega, 721 F.3d at 1177–78
       (stating that the court could not address the
       merits because the only final order before it
       was the BIA’s order invoking § 1003.4).

Judge Lee’s concurrence remains unchanged. No further
petitions for rehearing will be permitted.


                        OPINION

HURWITZ, Circuit Judge:

    The government removed Silvano Lopez-Angel to
Mexico while his appeal to the Board of Immigration
Appeals (“BIA”) was pending. It now argues that Lopez
withdrew the appeal because he left the country. We cannot
improve on Judge Kethledge’s description of the
government’s position: “To state that argument should be to
refute it[.]” Madrigal v. Holder, 572 F.3d 239, 246 (6th Cir.
2009) (Kethledge, J., concurring). We conclude that the
removal did not withdraw Lopez’s appeal and grant his
petition for review.

                      I. Background.

   Lopez, a native and citizen of Mexico, became a lawful
permanent resident of the United States in 1993. In 2004,
Lopez was convicted of corporal injury to a spouse or
cohabitant in violation of California Penal Code (“CPC”)
§ 273.5 and sentenced to 180 days in jail. In 2007, Lopez
was served with a Notice to Appear alleging that he was
removable under 8 U.S.C. § 1227(a)(2)(E)(i) as an alien
6                  LOPEZ-ANGEL V. BARR

convicted of a crime of domestic violence. An Immigration
Judge (“IJ”) administratively closed the removal
proceedings in April 2009 because Lopez was in state
custody awaiting trial on other charges. Later that year,
Lopez was convicted of kidnapping in violation of CPC
§ 207(a), inflicting corporal injury in violation of CPC
§ 273.5, and making criminal threats in violation of CPC
§ 422. Lopez received a five-year sentence on the
kidnapping conviction; the sentences for the two other
convictions were stayed.

    Removal proceedings were reopened in 2012. The
government lodged an additional charge, alleging that
because of the 2009 kidnapping conviction, Lopez was also
removable under 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien
convicted of an aggravated felony for which the term of
imprisonment was at least one year. Lopez conceded
removability but sought cancellation of removal. The IJ
concluded that Lopez was ineligible for cancellation of
removal because of the kidnapping conviction. Lopez did
not seek review of the IJ’s removal order and was deported
to Mexico in 2013.

     Lopez was apprehended in September 2015 while
attempting to reenter the United States and charged with
illegal reentry in violation of 8 U.S.C. § 1326. The prior
order of removal was reinstated and a warrant of removal
issued. In December 2015, Lopez moved in immigration
court for reconsideration of the removal order and to reopen
proceedings. He argued that his 2009 kidnapping conviction
no longer barred him from seeking cancellation of removal
because we had found unconstitutionally vague the
definition of a crime of violence in 18 U.S.C. § 16(b), which
is incorporated into the definition of an aggravated felony in
the Immigration and Nationality Act (“INA”), 8 U.S.C.
                  LOPEZ-ANGEL V. BARR                    7

§ 1101(a)(43)(F). See Dimaya v. Lynch, 803 F.3d 1110,
1120 (9th Cir. 2015), aff’d sub nom. Sessions v. Dimaya,
138 S. Ct. 1204 (2018). Lopez subsequently successfully
moved for dismissal of his illegal reentry case on this
ground. United States v. Lopez-Angel, No. 3:15-cr-2730
(S.D. Cal. Apr. 18, 2016). The IJ, however, denied Lopez’s
motions as untimely and also declined to reopen proceedings
sua sponte.

   Lopez filed a notice of appeal to the BIA on April 1,
2016. On April 21, 2016, shortly after Lopez was released
from custody on the § 1326 charge, the government removed
him to Mexico. The BIA then returned the record in Lopez’s
appeal to the IJ, holding that Lopez had withdrawn his
appeal under 8 C.F.R. § 1003.4 by departing the country.
That regulation provides in relevant part:

       Departure from the United States of a person
       who is the subject of deportation or removal
       proceedings, except for arriving aliens as
       defined in § 1001.1(q) of this chapter,
       subsequent to the taking of an appeal, but
       prior to a decision thereon, shall constitute a
       withdrawal of the appeal, and the initial
       decision in the case shall be final to the same
       extent as though no appeal had been taken.

8 C.F.R. § 1003.4. Lopez timely petitioned for review.

        II. Jurisdiction and Standard of Review.

    We have jurisdiction to review final orders of removal
under 8 U.S.C. § 1252. This jurisdiction “encompasses
review of decisions refusing to reopen or reconsider such
orders.” Mata v. Lynch, 135 S. Ct. 2150, 2154 (2015). The
BIA’s decision that Lopez withdrew his appeal is “the
8                 LOPEZ-ANGEL V. BARR

logical and functional equivalent” of an order denying his
motions. Madrigal, 572 F.3d at 242.

    We review questions of law de novo but sometimes defer
to the BIA’s interpretation of its governing statutes and
regulations. Lezama-Garcia v. Holder, 666 F.3d 518, 524–
25 (9th Cir. 2011). This is not such a case, however. The
BIA’s one-member, non-precedential order is not entitled to
Auer deference “because it does not reflect the BIA’s
considered judgment on the question.” United States v.
Hernandez-Arias, 757 F.3d 874, 883 (9th Cir. 2014). And,
because the BIA’s decision “contains no reasoning of any
substance on the issue we consider here,” Skidmore
deference does not apply. See Miller v. Sessions, 889 F.3d
998, 1001–02 (9th Cir. 2018).

                     III. Discussion.

A. When does 8 C.F.R. § 1003.4 apply?

    The withdrawal sanction in § 1003.4 is triggered by an
alien’s “departure” from this country. On its face, § 1003.4
“does not distinguish between volitional and non-volitional
departures.” Madrigal, 572 F.3d at 244. But, the BIA has
already recognized that the regulation does not apply every
time a petitioner leaves this country. See Matter of Diaz-
Garcia, 25 I. & N. Dec. 794, 796 (BIA 2012) (citing
Wiedersperg v. INS, 896 F.2d 1179, 1181–82 (9th Cir.
1990)). An unlawful removal, for example, does not
constitute a § 1003.4 departure. Id. at 797.

    The BIA, however, has expressly pretermitted whether a
lawful removal during the pendency of an appeal qualifies
as a departure under § 1003.4. Id. at 797 n.4. Three of our
sister Circuits have also left the issue open. See Montano-
Vega v. Holder, 721 F.3d 1175, 1179–80 (10th Cir. 2013);
                   LOPEZ-ANGEL V. BARR                       9

Ahmad v. Gonzales, 204 F. App’x 98, 99 (2d Cir. 2006);
Long v. Gonzales, 420 F.3d 516, 520 n.6 (5th Cir. 2005) (per
curiam).

    But the Sixth Circuit has squarely addressed the issue.
Madrigal, 572 F.3d at 244–45. Like Lopez, Madrigal was
removed under an outstanding removal order after appealing
an IJ’s denial of her motion to reopen. Id. at 241–42. The
BIA found her appeal automatically withdrawn under
§ 1003.4. Id. at 242. The Sixth Circuit panel, however,
unanimously held that § 1003.4 did not apply. Id. at 244–
45. Analyzing under the doctrine of waiver, the court held
that § 1003.4 applies only when the right to appeal is
relinquished by the alien’s own volitional conduct, not solely
that of the government. Id. Otherwise, the government
could vitiate the appeal of any petitioner subject to a removal
order simply by removing the petitioner before a ruling by
the BIA. Id. at 245. Because Madrigal was forced to leave
the country by the government, the Sixth Circuit held that
she did not waive her right to appeal. Id.

   We agree. The analysis in Madrigal is consistent with
our interpretation of a similar regulation, 8 C.F.R.
§ 1003.2(d), which states in relevant part:

       Any departure from the United States,
       including the deportation or removal of a
       person who is the subject of exclusion,
       deportation, or removal proceedings,
       occurring after the filing of a motion to
       reopen or a motion to reconsider, shall
       constitute a withdrawal of such motion.

In Coyt v. Holder, we held that the involuntarily removal of
a petitioner whose motion to reopen was pending did not
withdraw the motion. 593 F.3d 902, 906–07 (9th Cir. 2010).
10                    LOPEZ-ANGEL V. BARR

Construing § 1003.2(d) in light of the rights provided aliens
by the INA, we noted that “[i]t would completely eviscerate
the statutory right to reopen provided by Congress if the
agency deems a motion to reopen constructively withdrawn
whenever the government physically removes the petitioner
while his motion is pending before the BIA.” Id. at 907.
Seeking to harmonize the regulation with the underlying
statutory scheme, we held that “the physical removal of a
petitioner by the United States does not preclude the
petitioner from pursuing a motion to reopen.” Id.

    Application of the withdrawal sanction of § 1003.4 here
would produce a similar conflict with the INA. See Decker
v. Nw. Envtl. Def. Ctr., 568 U.S. 597, 609 (2013) (“It is a
basic tenet that ‘regulations, in order to be valid, must be
consistent with the statute under which they are
promulgated.’”) (quoting United States v. Larionoff,
431 U.S. 864, 873 (1977)). The INA gives a petitioner the
right to appeal a final removal order. See Mata, 135 S. Ct.
at 2153 (citing 8 U.S.C. § 1229a(a)(1), (c)(5)). That right
encompasses “decisions refusing to reopen or reconsider
such orders,” including decisions based on the untimeliness
of the motions. See id. at 2154. The statutory right would
be undermined if the government could simply terminate an
appeal by removing a petitioner. 1 See Marin-Rodriguez v.
Holder, 612 F.3d 591, 593 (7th Cir. 2010) (observing in dicta
that § 1003.4 is “strange phraseology as applied to an alien
whose departure was beyond his control” because “[i]t is

     1
        The government argues that Lopez was denied only an
administrative appeal. See 8 C.F.R. § 1003.1(b)(3). But, by rendering
the IJ’s decision final, the BIA effectively barred any further appellate
review of the underlying merits because they were not administratively
exhausted. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004);
see also Montano-Vega, 721 F.3d at 1177–78 (stating that the court could
not address the merits because the only final order before it was the
BIA’s order invoking § 1003.4).
                       LOPEZ-ANGEL V. BARR                             11

unnatural to speak of one litigant withdrawing another’s
motion”). It is therefore important, as we made clear in Coyt,
that “a party’s withdrawal of a pending proceeding . . . be a
voluntary relinquishment of a right.” 593 F.3d at 907 (citing
Madrigal, 572 F.3d at 244).

     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.
Rather, we hold that § 1003.4 provides for withdrawal only
when the petitioner engaged in conduct that establishes a
waiver of the right to appeal. See Madrigal, 572 F.3d at 244–
45. 2

B. Did Lopez otherwise waive his right to appeal?

    Resolution of this issue is now straightforward. There is
no evidence that Lopez voluntarily left the country, even
briefly, while his appeal was pending. See Aguilera-Ruiz v.
Ashcroft, 348 F.3d 835, 838 (9th Cir. 2003) (holding that
voluntary departures, even if “brief, casual, and innocent,”
withdraw an appeal under § 1003.4). The record establishes
only that the government removed Lopez on the same day


    2
       The government relies on two memorandum dispositions stating
that lawful removal qualifies as a departure under § 1003.4. See
Kureghyan v. Holder, 338 F. App’x 622, 624 (9th Cir. 2009) (observing
that the BIA had lost jurisdiction over a prior appeal because the
petitioner’s removal withdrew his appeal under § 1003.4); Ertur v.
Gonzales, 229 F. App’x 583, 584 (9th Cir. 2007) (reviewing the decision
of an IJ directly after the BIA determined that the petitioner’s appeal had
been withdrawn under § 1003.4 because he was removed). But, in
addition to being non-precedential, these dispositions addressed the issue
before us today only in passing. And, both predate Madrigal and Coyt.
We therefore do not find them persuasive in this case.
12                    LOPEZ-ANGEL V. BARR

he was released from criminal custody after the dismissal of
the illegal reentry case. 3

    We therefore hold that Lopez did not withdraw his
appeal of the denial of his motions to reopen and reconsider
when he was involuntarily removed from the United States.
We grant the petition for review so that BIA can reinstate his
appeal. We of course express no opinion on the merits of
that appeal; we hold only that Lopez did not withdraw it.

  PETITION               FOR          REVIEW            GRANTED;
REMANDED.



LEE, Circuit Judge, concurring:

    I agree that the petitioner did not withdraw his appeal of
a motion to reopen under 8 C.F.R. § 1003.4 when he was
forcibly removed from the country, but I reach that
conclusion differently.

    The majority opinion concludes that § 1003.4 does not
apply here because of Madrigal v. Holder, 572 F.3d 239 (6th
Cir. 2009). But it is “unclear whether the Sixth Circuit
thought this exception could be found lurking somewhere in

      3
        We reject the government’s argument that Lopez’s failure to
appeal the 2013 removal order or request a stay of removal pending
appellate adjudication of his motions to reopen and reconsider
constitutes waiver of his right to appeal the IJ’s order denying those
motions. Neither was an intentional relinquishment of the right to appeal
at issue here. See generally United States v. Depue, 912 F.3d 1227, 1232
(9th Cir. 2019) (en banc) (“Whereas forfeiture is the failure to make the
timely assertion of a right, waiver is the ‘intentional relinquishment or
abandonment of a known right.’”) (emphasis omitted) (quoting United
States v. Olano, 507 U.S. 725, 733 (1993)).
                   LOPEZ-ANGEL V. BARR                     13

the terms of the rule itself, or whether it thought the
Constitution’s due process guarantee required it.” Montano-
Vega v. Holder, 721 F.3d 1175, 1179 (10th Cir. 2013). In
any event, I do not believe that the due process concerns in
Madrigal apply here. The petitioner in Madrigal filed a
motion to stay the removal pending the disposition of her
appeal, but DHS removed her from the country while the
motion to stay was pending. 572 F.3d at 241–42. As the
Sixth Circuit noted, “principles of fundamental fairness
would be violated” if the government could unilaterally
terminate an appeal and moot a motion for a stay when a
petitioner “appears to have done all that she could have done
to avail herself of the process.” Id. at 245.

    Here, though, there is nothing in the record showing that
Lopez moved for a stay. Since Lopez has not done all that
he could have done to avail himself of the process,
“principles of fundamental fairness” would not necessarily
be violated if § 1003.4 applied here.

    Nonetheless, I agree with the majority’s conclusion
based on a reasonable reading of the regulation. As quoted
in the majority opinion, § 1003.4 states as follows:
“Departure from the United States of a person who is the
subject of deportation or removal proceedings . . .
subsequent to the taking of an appeal, but prior to a decision
thereon, shall constitute a withdrawal of the appeal.” The
question is whether a forcible removal is a “departure” under
the above regulation.

    We give words their ordinary meaning when interpreting
a statute. See Animal Legal Defense Fund v. United States
Dept. of Agriculture, 933 F.3d 1088, 1093 (9th Cir. 2019)
(“When a statute does not define a term, we typically ‘give
the phrase its ordinary meaning.’” (internal quotation marks
omitted)) (quoting FCC v. AT & T Inc., 562 U.S. 397, 403
14                 LOPEZ-ANGEL V. BARR

(2011)). The ordinary meaning of the word “departure”
refers to a volitional act. It would be quite strange to say, for
example, “the suspect departed the crime scene when police
took him into custody.” Though it might be possible to use
“departure” in a non-volitional sense, there is a “distinction
between how a word can be used and how it ordinarily is
used.” Smith v. U.S., 508 U.S. 223, 242 (1993) (Scalia, J.,
dissenting) (emphasis in original).

    The context of the word “departure” also suggests that it
does not include forcible removals. See ASARCO, LLC v.
Celanese Chemical Co., 792 F.3d 1203, 1210 (9th Cir. 2015)
(“A primary canon of statutory interpretation is that the plain
language of a statute should be enforced according to its
terms, in light of its context.”). Section 1003.4 is a single
paragraph describing the procedure for how a party can
withdraw his or her own appeal. See 8 C.F.R. § 1003.4
(beginning with how “[i]n any case in which an appeal has
been taken, the party taking the appeal may file a written
withdrawal thereof with the office at which the notice of
appeal was filed”). As the Seventh Circuit has noted, “[i]t is
unnatural to speak of one litigant withdrawing another’s
motion.” Marin-Rodriguez v. Holder, 612 F.3d 591, 593
(7th Cir. 2010).        Moreover, if “departure” included
deportations or removals, the regulation would read:
“Departure [e.g., deportation or removal] from the United
States of a person who is the subject of deportation or
removal proceedings . . . shall constitute a withdrawal of the
appeal.” That would be an odd way to read the regulation.

   Notably, Section 1003.2(d) — the substance of which
was promulgated on the same day as § 1003.4, see Executive
Office for Immigration Review; Motions and Appeals in
Immigration Proceedings, 61 Fed. Reg. 18,900, 18,905–07
(April 29, 1996) — states that “[a]ny departure from the
                  LOPEZ-ANGEL V. BARR                   15

United States, including the deportation or removal of a
person who is the subject of exclusion, deportation, or
removal proceedings, occurring after the filing of a motion
to reopen or a motion to reconsider, shall constitute a
withdrawal of such motion.”         8 C.F.R. § 1003.2(d)
(emphasis added). Here, if “departure” included forcible
removals, it would have been unnecessary in § 1003.2(d) to
state that a “departure” includes the “deportation or
removal” of the person subject to the proceedings. Indeed,
this shows that the agency knew how to specify that
“departure” includes forcible removals when it intended to
do so.

   I therefore concur that Lopez’s appeal was not
withdrawn under § 1003.4 when he was forcibly removed
from this country.
