NOT FOR PUBLICATION FILED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.
2