CA9 Appeal Waiver Remand: Phong v. Garland

Phong v. Garland (unpub.)

"Petitioner Kai Hong Phong seeks review of the Board of Immigration Appeals (“BIA”) summary dismissal of his appeal from an Immigration Judge’s (“IJ”) determination that Phong is ineligible for asylum, protection under the Convention Against Torture, or withholding of removal. After reviewing an audio recording of Phong’s hearing before the IJ, the BIA concluded that because Phong orally waived his right to appeal the IJ’s decision during the hearing, it lacked jurisdiction to consider the substance of his appeal. We have jurisdiction under 8 U.S.C. § 1252, and we remand to the BIA to develop the record on whether Phong waived his right to appeal. ... Without record evidence that Phong orally waived his right to appeal before the IJ, we decline to address his alternative arguments that any waiver was unconsidered, unintelligent, or otherwise unenforceable. Rather, we remand to the BIA to develop the record on the waiver issue and, if it deems it appropriate, to consider Phong’s remaining arguments in the first instance. See Aguilar-Osorio v. Garland, 991 F.3d 997, 1000 (9th Cir. 2021) (remanding where we lacked “an adequate basis on which to evaluate [petitioner’s] claim”). The government’s motion to supplement the record is DENIED, the petition is GRANTED IN PART, proceedings are REMANDED, and all other pending motions are DENIED AS MOOT."

[Hats off to Diego Aranda Teixeira!]