Perez-Garcia: BIA Had to Consider Voluntary-Departure Bond Proof

Perez-Garcia v. Blanche, No. 24-1092, Agency No. A215-881-702 (9th Cir. Sept. 25, 2026), addresses a narrow but consequential question: Could the court review the Board of Immigration Appeals’ failure to consider the only record evidence showing that a noncitizen paid his voluntary-departure bond? The BIA issued its decision on February 9, 2024, and the case was argued and submitted on September 17, 2025. The published majority answered yes. It granted the petition in part and remanded for the BIA to consider the receipt and decide whether to reinstate the voluntary-departure period. The court did not itself reinstate voluntary departure.

The bond was paid and proof accompanied the BIA appeal

An immigration judge denied Juan Antonio Perez-Garcia’s application for cancellation of removal but granted post-conclusion voluntary departure. The order required a $500 bond within five business days and departure within 60 days. The judge also advised that, if Perez-Garcia appealed, the BIA would not reinstate the departure period unless he submitted proof of the bond payment within 30 days of filing the appeal.

Perez-Garcia paid the bond the next day. When he timely appealed on December 6, 2019, the documents filed with his notice included a Department of Homeland Security receipt acknowledging the payment. The BIA nevertheless declined to reinstate voluntary departure because it said the record did not reflect timely proof. It ordered removal under the immigration judge’s alternate order.

The majority treated the omission as a question of law

Two provisions limit judicial review of voluntary-departure decisions: 8 U.S.C. sections 1252(a)(2)(B)(i) and 1229c(f). The court first confirmed that the BIA’s refusal to reinstate voluntary departure merged into the final removal order under Nasrallah v. Barr, 590 U.S. 573, 582 (2020), satisfying the threshold jurisdictional grant in 8 U.S.C. section 1252(a)(1). Section 1252(a)(2)(D), however, preserves review of constitutional claims and questions of law raised in a qualifying petition for review. The majority cited Wilkinson v. Garland, 601 U.S. 209 (2024), for that review-preserving rule; the dissent later argued that Wilkinson, combined with the majority’s treatment of the record error here, left little of the jurisdictional bars beyond the ultimate discretionary decision. The majority therefore asked whether Perez-Garcia challenged an unreviewable factual determination or a reviewable legal error.

The court reviewed de novo whether the BIA failed to consider evidence, treating that issue as a question of law under Flores Molina v. Garland, 37 F.4th 626, 632 (9th Cir. 2022). It characterized the BIA’s complete failure to consider the bond receipt as legal error and relied on circuit authority holding that an agency may not ignore highly probative or potentially dispositive evidence. The receipt was the only relevant evidence on the payment issue, and the BIA’s stated reason showed it had overlooked that document. Reviewing that omission did not require the court to reweigh competing evidence, reassess credibility, or substitute a factual finding.

Patel did not eliminate review of this omission

The government had conceded in its brief that a limited remand was appropriate, but at oral argument it invoked Patel v. Garland, 596 U.S. 328 (2022), to argue that the payment question was factual and unreviewable. The majority distinguished Patel, which involved credibility and subjective intent determinations made from conflicting evidence. In Perez-Garcia, the claimed error was the agency’s failure to consider any evidence on the dispositive point.

The majority emphasized that it was not converting every obvious factual mistake into a legal question. Its holding concerned a complete failure to consider critical evidence. Judge Mendoza, Jr.’s concurrence likewise described the omission as an agency legal error requiring remand.

The dissent would have dismissed for lack of jurisdiction

Judge Collins concurred in the unpublished memorandum disposition denying cancellation of removal but dissented from the published voluntary-departure ruling. In his view, the BIA correctly stated the governing bond rule and merely misapprehended whether the bond had been posted. He therefore considered the mistake factual and outside the court’s jurisdiction under the voluntary-departure review bars and Patel.

The divided panel matters when describing the rule. The published majority controls in the Ninth Circuit unless displaced by later authority, but the dissent identifies the jurisdictional boundary that future cases may test: The difference between failing to consider evidence and disputing what the evidence proves.

The remand was limited

The panel did not hold that the BIA must reinstate voluntary departure, that every agency record mistake is reviewable, or that Perez-Garcia prevailed on cancellation of removal. A separate memorandum disposition denied the petition as to cancellation. The published opinion remanded only for the BIA to consider the record evidence and reconsider whether to reinstate the voluntary-departure period.

The timing rule also remains important. The opinion describes 8 C.F.R. section 1240.26(c)(3)(ii) as requiring an appellant to submit sufficient proof of posting the bond within 30 days after filing the BIA appeal. The immigration judge’s separate bond-posting deadline was five business days. The case turned on the fact that Perez-Garcia both paid the bond and timely supplied proof.

What the decision means for the administrative record

Perez-Garcia is a reminder to preserve the actual filing record, not merely the payment event. A complete file should identify the immigration judge’s conditions, the payment date, the receipt, the date and contents of the BIA filing, proof of delivery or acceptance, the BIA decision, and the alternate removal order. If review is sought, the petition should distinguish an alleged failure to consider evidence from a request to reweigh facts.

Questions about the decision

Did the Ninth Circuit reinstate voluntary departure?

No. It remanded for the BIA to consider the receipt and decide whether to reinstate the voluntary-departure period.

Why did the majority have jurisdiction?

The majority treated the BIA’s complete failure to consider the only evidence on a dispositive issue as a question of law preserved by 8 U.S.C. section 1252(a)(2)(D).

What happened to the cancellation-of-removal claim?

A separate memorandum disposition denied the petition as to cancellation of removal.

The opinion does not reduce voluntary departure to a paperwork remedy. Eligibility, discretion, appeal effects, departure timing, and statutory penalties remain separate issues. Review Mishra X’s voluntary-departure overview, removal-defense practice, and Case Library for related general information. The complete published opinion and current regulation should be checked before relying on this analysis.