Background
Juan Antonio Perez-Garcia, a Mexican citizen who entered the United States without inspection in 2000, conceded removability and sought cancellation of removal or, alternatively, voluntary departure. An immigration judge denied cancellation but granted post-conclusion voluntary departure, requiring Perez-Garcia to post a $500 bond within five business days and depart within 60 days. Perez-Garcia paid the bond the next day.
Perez-Garcia appealed the cancellation ruling to the Board of Immigration Appeals and submitted a Department of Homeland Security receipt showing his timely bond payment. The BIA dismissed the appeal and declined to reinstate voluntary departure, stating that the record did not reflect timely proof of payment. Perez-Garcia petitioned the Ninth Circuit for review.
The Court’s Holding
The Ninth Circuit granted the petition in part and remanded. Although statutes generally restrict judicial review of voluntary-departure decisions, the court held that it had jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to review the asserted question of law. The BIA committed legal error by failing to consider the bond receipt—the only evidence on an issue dispositive of whether the voluntary-departure period could be reinstated. The court distinguished Patel v. Garland because Perez-Garcia was not asking it to reweigh evidence or second-guess a factual finding; he challenged the agency’s failure to consider any evidence on the issue.
The panel remanded for the BIA to consider the record evidence and reconsider whether to reinstate voluntary departure. In a separately filed memorandum disposition, the panel denied the petition as to cancellation of removal. Judge Mendoza concurred separately, agreeing fully with the majority and emphasizing that an agency’s complete failure to consider dispositive evidence is reviewable legal error. Judge Collins concurred in denying relief on the cancellation claim but dissented from the voluntary-departure ruling, reasoning that the BIA made an unreviewable factual error and that the court therefore lacked jurisdiction over that portion of the petition.
Key Takeaways
- The BIA’s failure to consider highly probative or dispositive record evidence constitutes a legal error reviewable under 8 U.S.C. § 1252(a)(2)(D).
- The Ninth Circuit distinguished an agency’s complete failure to consider evidence from the unreviewable factual determinations addressed in Patel v. Garland.
- The remand does not itself reinstate voluntary departure; it requires the BIA to consider the bond-payment receipt and decide the issue again.
Why It Matters
The decision confirms that statutory limits on reviewing discretionary immigration relief do not insulate the BIA when it entirely overlooks critical evidence. Noncitizens may obtain judicial review of that type of legal error even when courts could not review the agency’s weighing of evidence or ordinary factual findings.
The divided panel also highlights an important jurisdictional disagreement: the majority and Judge Mendoza treated the omission as legal error, while Judge Collins viewed it as a factual mistake barred from review.