Reported / Citable
Background
Juan Antonio Perez-Garcia is a Mexican citizen who entered the United States without inspection in 2000. In 2019, DHS initiated removal proceedings. Perez-Garcia admitted removability but applied for cancellation of removal and requested voluntary departure as an alternative. The immigration judge denied cancellation but granted voluntary departure, conditioning it on a $500 bond posted within five business days and departure within 60 days. Perez-Garcia complied, posting the bond the next day.
When Perez-Garcia appealed the denial of cancellation to the Board of Immigration Appeals, the voluntary departure period became contingent on proof of bond payment within 30 days of filing the appeal. Perez-Garcia timely submitted his receipt with his notice of appeal to the BIA. However, the BIA stated the record “did not reflect” that he submitted timely proof, and declined to reinstate voluntary departure.
The Court’s Holding
The Ninth Circuit held the BIA committed legal error by failing to consider the bond payment receipt—which was plainly in the record. Although courts ordinarily lack jurisdiction to review denials of discretionary relief like voluntary departure, they can review questions of law, including procedural failures to consider evidence.
The government argued Patel v. Garland barred review of any factual determinations in discretionary relief cases. The court distinguished Patel: it involved weighing competing evidence about credibility and intent—quintessential factual acts requiring judgment. Here, the BIA completely failed to consider any evidence on the dispositive issue. The court was not second-guessing factual findings but addressing a procedural failure to consider material evidence. The court remanded for the BIA to reconsider the voluntary departure decision based on the overlooked evidence.
Key Takeaways
- Agencies commit legal error—subject to court review—when they completely ignore material evidence in the record, even for discretionary relief decisions that are ordinarily unreviewable
- The distinction between legal error and unreviewable factual error is critical: weighing evidence and credibility determinations are factual acts; failing to consider evidence at all is legal error
- Courts can review questions of law and procedural failures in discretionary relief cases, even when they lack jurisdiction over the ultimate grant or denial of relief
- For practitioners: if the BIA’s decision overlooks evidence that was properly in the record, document that failure; it may support an appeal even when relief is discretionary
Why It Matters
For immigration practitioners and those representing clients in removal proceedings, this case creates a meaningful check on BIA decision-making. Although voluntary departure is discretionary and normally unreviewable, the BIA’s failure to consider evidence is procedural error subject to reversal. When filing appeals involving discretionary relief, ensure your client’s evidence is clearly documented in the record and referenced explicitly. If the BIA’s written decision suggests it overlooked that evidence, you have grounds for remand.
The decision also reflects the Ninth Circuit’s impatience with formalistic arguments used to shield administrative errors from review. The court recognized that permitting agencies to ignore evidence without consequences would render the review standard meaningless. For practitioners, this case demonstrates that federal courts will examine whether agencies actually considered the evidence before them, a principle with applications across administrative law and immigration practice.