Gomez-Rivera v. Ashcroft

32 F. App'x 942

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 3, 2002
• Docket: No. 01-70416; INS No. A74-825-576
• Status: Published

Opinion

MEMORANDUM

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The BIA dismissed Gomez-Rivera’s appeal on the ground that he waived his right to appeal during the hearing before the IJ. The BIA also denied Gomez-Rivera’s request to reconsider that decision. In both of its decisions the BIA majority misstated the facts of the case at hand by quoting the IJ as stating that her order was “‘final.’ (Tr. at 9).” However, the word “final” appears nowhere in the transcript of the record of the proceedings at page 9. The BIA’s decisions were explicitly based on an erroneous understanding of the facts.

A waiver of the right to appeal the IJ’s decision must be knowing and intelligent. See, In re Ocampo-Ugalde, Int. Dec. 3429, 2000 WL 311139 (BIA 2000); United States v. Gonzalez-Mendoza, 985 F.2d 1014, 1017 (9th Cir.1993). The record reflects that Gomez-Rivera did not knowingly and voluntarily waive his right to appeal the IJ’s decision. We grant the petition for review and remand this case to the BIA.

PETITION GRANTED AND REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.