Carlos Alexander Castillo- Crespo v. WILLIAM P. BARR, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARLOS ALEXANDER CASTILLO-
CRESPO,
Petitioner,
v.
WILLIAM P. BARR, Attorney General,
Respondent.
No. 17-72936
Agency No. A206-676-194
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 16, 2019
San Diego, California
Before: HURWITZ, OWENS, and LEE, Circuit Judges.
Carlos Alexander Castillo-Crespo, a native and citizen of El Salvador,
petitions for review of a decision of the Board of Immigration Appeals (“BIA”),
finding that his appeal from a removal order of an Immigration Judge (“IJ”) was
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
NOV 13 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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withdrawn pursuant to 8 C.F.R. § 1003.4.1 We have jurisdiction under 8 U.S.C.
§ 1252. We grant the petition and remand.
Waiver of the right to appeal a removal order must be “considered” and
“intelligent.” Chavez-Garcia v. Sessions, 871 F.3d 991, 996 (9th Cir. 2017) (quoting
United States v. Mendoza-Lopez, 481 U.S. 828, 840 (1987)). The applicant must
therefore be informed that departure from the country would waive the right to
appeal. Id. at 997-98. Although Chavez-Garcia dealt with 8 C.F.R. § 1003.3(e),
which provides for “waiver” of the right to appeal when a petitioner departs the
country before appealing the order of an IJ to the BIA, there is no material difference
between the “waiver” and “withdrawal” of an appeal through departure. When an
appeal is withdrawn, the decision of the IJ is “final to the same extent as though no
appeal had been taken.” 8 C.F.R. § 1003.4.
The government presented no evidence that Castillo knew departure would
1 The regulation provides:
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.

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result in the withdrawal his appeal, and the BIA made no such finding.2 Nor is there
clear and convincing evidence in the record that Castillo knew of this consequence
before his alleged departure. See Chavez-Garcia, 871 F.3d at 997 (holding that there
must be “clear and convincing evidence” of waiver) (citing United States v. Gomez,
757 F.3d 885, 894 (9th Cir. 2014)).3
PETITION FOR REVIEW GRANTED; REMANDED.
2 Castillo relied on Chavez-Garcia in a supplemental filing to the BIA, which
addressed that opinion in its decision. See Parada v. Sessions, 902 F.3d 901, 914
(9th Cir. 2018) (“It is well-established that we may review any issue addressed on
the merits by the BIA, regardless of whether the petitioner raised it before the
agency.”).
3 Because we grant the petition on this ground, we do not address the other
arguments in Castillo’s petition.

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Castillo-Crespo v. Barr, No. 17-72936
LEE, Circuit Judge, dissenting:
I respectfully dissent for two reasons.
First, Castillo-Crespo did not adequately raise and exhaust the argument that
he allegedly did not receive sufficient notice about the effect of departing the
country. He did not argue this in his merits brief to the BIA, and instead relies
solely on a submission to the BIA that simply states that Chavez-Garcia v.
Sessions, 871 F.3d 991 (9th Cir. 2017) “is directly relevant to his case.” See Abebe
v. Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009) (en banc) (“Petitioner will
therefore be deemed to have exhausted only those issues he raised and argued in
his brief before the BIA.”).
Second, even assuming that the claim is exhausted, Castillo-Crespo’s
argument fails because he received sufficient notice about the effect of his
departure. To file a notice of appeal with the BIA, Castillo-Crespo had to use
Form EOIR-26. The instructions for Form EOIR-26 states “[i]f you leave the
United States after filing an appeal with the Board, but before the Board decides
your appeal, your appeal may be withdrawn and the Immigration Judge’s decision
put into effect as if you had never filed an appeal.” This is sufficient warning of
the effects of his departure.
FILED
NOV 13 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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