was forcibly removed by the government from the united states while he was pursuing an appeal to the board of immigration appeals and the immigration judge as denial of his motion to reopen the two thousand and thirteen removal order in his case while he was facing criminal prosecution here in the southern district of california his court appointed counsel mr finn ice filed a motion to reopen based on this court's decision and the mind of vs lynch which completely remove the legal basis for the immigration judge is finding in two thousand and thirteen that mr lopez had been convicted of an aggravated felony and was not eligible to apply for cancellation of removal after more than twenty years as a lawful permanent resident in this country after this court's decision and maya there was no legal basis for that finding and mr finn ice filed a motion to reopen for that reason and within ninety days of the court's decision the new information that gave rise to the new legal reasoning in the case once that motion was denied by the immigration judge while the criminal case was still pending mr finn was pursued an appeal to the board of immigration appeals and  schedule was issued and then while that briefing schedule was in effect the department forcibly remove mr lopez on help from the united states because the criminal case was dismissed after a district court judge found that the underlying two thousand and thirteen removal order was no longer legally valid because it rested on the premise that had been found unconstitutional by this court's decision and mine three days after the criminal case was decided it was decided that th department forcibly remove mr lopez on howell and then the board of immigration appeals found that although mr lopez had filed a motion to reopen i filed a notice of appeal and his counsel mr finn i said even requested an extension of the briefing after the criminal case had been dismissed indicating he still intended to file a brief although there was no longer a criminal case to defend the department found at the board found that mr lopez had abandoned his appeal that he had withdrawn his appeal there's research and trying to figure out the six circuit rules your way and you know what i think is a very convincing opinion understory to figure out whether there's any case law to the contrary i'm not aware of contrary case law with with this fact p many of the cases involve inadvertent but voluntary in the sense that they were the result of actions by the person who is up to the removal order decisions to depart the united states and we'll see one of those later forcible removal and in fact it's a question that the board of immigration appeals explicitly left open in the d s r decision in which it found that when the removal order is unlawfully executed it cannot be that the regulation means that that a departure and explicitly left open the question whether a forcible removal pursuant to a lawful order of removal should be considered a departure but both magical and that the decision that discusses the long decision from the th circuit both of those cases are resting on general waiver principles in interpreting the meaning of the word departure and the full context of that regulation which stay of removal for the majority of the time while the motion to reopen and even the appeal was pending mr lopez was in the custody of the united states marshal service and was not yet in the custody of the department of homeland security the department only really gave mr lopez less than seventy two hours between when the criminal case was dismissed and he was released from marshall scott and when the removal order was executed and it was executed a reinstatement of the two thousand and thirteen so there was no process nor was there any notification to counsel that mr lopez would be removed to counsel that that the removal order was pending execution such that there was any ability for anybody to seek a stay in that short period of time there's also no regulatory requirement nor has this court ever required that be informed of their right to seek a stay of removal certainly mr lopez was not informed that failing to do so would constitute a withdrawal of the peel that he had asked his counsel to file on his behalf and notice of appeal he had signed there's nothing in that document saying that failure to seek a stay of of an appeal when  appeal of the denial of a motion to reopen that that would see that would constitute waiver that there are notifications related to departure that that one receives in court but mr lopez never went to court in two thousand and fifteen  in front of any immigration judge you can have another context and pretty severe adverse consequences maybe not a waiver of appeal if you don't you know file a stay so for example in a civil case if you don't file was the a judgment all your appeals pending you have to pay that money or in a criminal case if you don't stay of a file say of sensing you go to prison even though you may have a valid appeal and he may be vindicated but you'll go to prison if you don't file a stay  and really it's clear from the record in this case both of the underlying removal and of the filing of the motion to reopen and that the assistance of counsel was integral to every form of relief that mr lopez on hell ever  sought that the underlying removal proceedings reflect repeated requests a concert he could seek counsel and ultimately has removed after being unable to find counsel and that it was court appointed counsel in the criminal case that filed this motion to reopen in the  st place so without any notification to counsel that a stay was available or necessary the record indicates in this or lopez on how was was not capable of seeking that kind of relief on his own  that the relief that has been sought has all been sought through counsel and unlike the criminal case in which he was entitled to the appointment of counsel by the court the only way the motion to reopen was even filed in the st place was because it was so intertwined with the elements of the criminal offense with which he was charged such that his th amendment right to counsel benefited him in his ability to seek this relief otherwise he would never have had the assistance of court appointed counsel as someone who district court did find was the appeal yes and and again i think really there's two different ways that the court could resolve this case one is to find that the withdrawal of appeal regulation is invalid if if the board's decision is considered an interpretation but i think the simpler and really more and more consistent with the the law interpretation is defined that a forcible removal does not constitute a depart cases on which we relied not just not recall from the six but this court's decisions in both coit and tour indicate that this court's interpretation of departure throughout the immigration regulations related to waiver and aband nment of claims all indicate that there must be some volitional component to departure and the government suggested interpretation and the courts questions are well taken on this point that failure to act can be steps that interpretation of departure the departure is only only considered to be involuntary if a person took every possible legal step that is available to someone under the regulations again it's not consistent where we don't have to go that written notification to mr lopez of the right to seek a stay and there was no written waiver or written indication that he did not wish to do so and any communication about stay is something that would have been is not before the court which is part of the problem with the government suggested interpretation if this court were to review the question of whether a person had departed in the context of whether that person made a volitional choice to not avail himself of available procedures the question is then what evidence should be in the record to decide that question it's certainly not a question that was decided by the board or based on any evidence it the board the board's opinion suggests if anything that it determines any exit from the united states to be considered a departure and that's not consistent with this court's decisions and point or tour and that is very similar to the situation that the th circuit addressed in m must unless departure is considered to be volitional and there's evidence of evolution all act a person should not be considered to have waived their important legal and procedural right to appeal the denial of a motion is especially considering that underlying such a tory right it has numerical limits that a person can after removal try again that if he if mr lopez is not entitled to review of this motion that he filed he will never be able to file another motion to reopen this two thousand and thirteen removal order despite a district judges finding that it was legally invalid despite the supreme court's later so i think that there are distinguishing factors in madrigal and that of the facts are a little bit worse for the government but they're pretty bad in this case too and the only issue is whether or not mr lopez can pursue an appeal that he might well lose because even if it is even if his conviction is invalid he still has to demonstrate the equities to stay in departure through a reinstated order which was also entered by fault of his own when he illegally rian ited states while under an order of remov word departure in its ordinary meaning suggest some less than all activity say for example of someone said the suspect departed from the crime scene i think reasonable person a it would interpret that to mean the suspect out of his own volition flat as opposed to the police arrested him off and want to say the suspect departed from the crime scene to mean that the police came and forcibly arrested the suspects i mean it seems like the ordinary usage of the term departed they were departure suggest so they have specifically reserved this question and the board here is applying it in the k removal again or move under a reinstated order just another note here that government explicitly said define departure to include deportation or removal and the regulation at issue in this case here the government didn't define the regs include that so why doesn't that  you this court's decision and garcia indicated that the board's interpretation of a regulation when there is some interpretation of that regulation is only intitled to  to review the court simply states the regulation and state that state states that mr lopez has departed from the united states does not indicate why it's reaching this conclusion in the shadow of the day as garcia open question that  left open why why in this case it is finding that an involuntary removal counts as a departure and this core analyzed an almost identical regulation in court the only difference between the regulation that was invalidated in court and this is that the regulation invalidated in quite was relating to presenting motions to reopen in the st instance that if a person departs  united states after filing a motion to reopen but before that motion has been decided the motion shall deem be deemed withdrawn here if a person departs the united states after filing an appeal but before that appeal has been abandonment or withdrawal regulation the departure bar to filing motions to reopen or to having them decided was invalid here the court doesn't have to come up with a full definition of what departure means just has to decide how it should