“[A]lthough the record suggest[ed] some initial confusion . . . the evidence [was not] so compelling that no reasonable fact finder could conclude . . . that [petitioner’s] waiver was valid”. (citation omitted)
How later courts described this case
- “[A]lthough the record suggest[ed] some initial confusion . . . the evidence [was not] so compelling that no reasonable fact finder could conclude . . . that [petitioner’s] waiver was valid”. (citation omitted)
Written by the judges who cited it.
The opinion
Case: 09-60937 Document: 00511401851 Page: 1 Date Filed: 03/04/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 4, 2011
No. 09-60937
Lyle W. Cayce
Clerk
EDDY KOHWARIEN,
Petitioner
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent
On Petition for Review of an Order of the
Board of Immigration Appeals
Before GARZA, STEWART, and HAYNES, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Petitioner Eddy Kohwarien, a native and citizen of Nigeria, seeks review
of an order of the Board of Immigration Appeals (“BIA”) dismissing his appeal
for lack of jurisdiction. See In re Eddy Kohwarien, No. A097 531 146 (B.I.A. Nov.
24, 2009). The BIA found that Kohwarien had waived his right to appeal during
removal proceedings before an Immigration Judge (“IJ”). Kohwarien now
contends that his waiver was not knowing and intelligent. This matter turns on
whether the record contains substantial evidence to support the BIA’s finding
that it lacked jurisdiction over Kohwarien’s appeal (i.e., whether the record
shows that Kohwarien knowingly and intelligently waived his appellate rights).
We hold that it does, and deny the petition for review accordingly.
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No. 09-60937
I
In September 2003, Kohwarien was admitted to the United States on a B-1
non-immigrant business visa that allowed him to remain in the U.S. for a period
not to exceed three months. He failed to depart at the end of his visa term and
settled in New York. In 2006, the Department of Homeland Security (“DHS”)
initiated removal proceedings and served Kohwarien with a Notice to Appear.
The Notice informed Kohwarien of the charge against him—remaining in the
United States for a period longer than permitted by his visa—and notified him,
inter alia, that at the end of the proceedings he would have the right to appeal
any adverse decision by the immigration judge.
At a March 2008 hearing, Kohwarien conceded, through counsel, that he
was removable as charged, but he requested an adjustment of status based on
his recent marriage to a U.S. citizen. See 8 U.S.C. § 1255(a). Alternatively,
Kohwarien requested that he be granted voluntary departure.1 The Immigration
Judge continued the hearing so that Kohwarien could assemble his adjustment
of status application, along with several other applications for relief.
In November 2008, after the removal proceedings had been continued five
times so that Kohwarien could prepare his adjustment application, Kohwarien
notified the IJ that his attorney had been suspended from practice by her state
bar. The IJ granted Kohwarien seven additional continuances for the purpose
1
Voluntary departure is a discretionary form of relief that allows certain aliens to leave
the country willingly. See 8 U.S.C. § 1229c(a)(1) (“The Attorney General may permit an alien
voluntarily to depart the United States at the alien’s own expense under this subsection” in
lieu of being subject to removal proceedings). The policy benefits the Government and the
alien alike. See generally Dada v. Mukasey, 554 U.S. 1, 11–12 (2008). When an alien requests
voluntary departure at the conclusion of removal proceedings, the statute provides a voluntary
departure period of not more than 60 days, whereas an alien can receive up to 120 days if he
concedes removability and requests voluntary departure before or during removal proceedings.
Compare § 1229c(b)(2), with § 1229c(a)(2)(A).
2
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of obtaining new counsel. Kohwarien never obtained new counsel, explaining in
July 2009 that he “couldn’t find [an attorney] in Texas.”
In August 2009, after DHS determined that Kohwarien’s adjustment of
status application had been abandoned and all other avenues of relief had been
exhausted, DHS asked the Immigration Judge to order Kohwarien removed.
Kohwarien objected, asking that his removal proceedings be continued while he
pursued an appeal of an unrelated New York criminal conviction. The IJ denied
the request, explaining that Kohwarien’s state criminal appeal had no bearing
on his immigration proceedings. One week later, Kohwarien filed a motion to
terminate the removal proceedings based on the pendency of his state criminal
appeal, as well as his intention to renew his adjustment of status application.
Kohwarien appeared pro se at the August 21, 2009 hearing before the
immigration judge. The IJ first addressed Kohwarien’s motion to terminate the
removal proceedings. The IJ explained to Kohwarien that he was removable for
remaining in the United States longer than permitted by his visa, and not
because of any criminal convictions, and the IJ denied the motion to terminate
accordingly.
The IJ then explained to Kohwarien that he remained eligible for pre-
conclusion voluntary departure despite his criminal conviction. This colloquy
followed:
Q: Whether you get relief is a totally separate issue. Whether
you properly apply for it is a separate issue. You’re obviously
eligible for relief, so far you’ve denied wanting some relief.
That’s your tactical approach. Do you understand?
A: Can you repeat that, Judge?
Q: You’re eligible for some relief and you didn’t want it? Correct?
A: What relief is that, Judge?
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Q: Pre-conclusion voluntary departure.
A: Well, that was decided (indiscernible) my last proceeding last
week.
Q: I can’t hear you.
A: I, I . . .
Q: You did not want it, correct?
A: I never said that, Judge.
Q: Well, do you want it, yes or no?
A: Yes, Judge, I want it.
Q: Are you waiving all rights of appeal, yes or no?
A: I just said I wanted the relief.
Q: Why don’t you try listening to my question and answering it.
Are you waiving all rights of appeal, yes or no?
A: Appealing what, Judge?
Q: I don’t understand you. Tell me again.
A: Well, you just asked me if I’m waiving my right to appeal and
I’m asking you, Judge, what am I appealing?
Q: The decision of the Immigration Judge.
A: What decision, Judge?
Q: Judge Achtsam explained to you your rights and you said you
understood them and now you don’t? 2
2
The IJ appears to be referring to IJ Howard E. Achtsam’s rights advisement at a
January 14, 2008 hearing, during which he explained to Kohwarien that he could appeal the
IJ’s removal decision and verified that Kohwarien had received a form explaining his appeal
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A: Judge who?
Q: Achtsam in Harlingen.
A: Oh, yes, he was the first Judge (indiscernible) my adjustment
of status.
Q: . . . You seem to have forgotten. I’ll explain it to you. To be
eligible for pre-conclusion voluntary departure you must
qualify, you must waive all rights of appeal, agree you are
removable as charged, and pursue no other relief, must not
have been convicted of certain convictions. You must merit
and timely ask for it, you must have a valid travel document
or establish you’re diligently getting it. Do you understand,
yes or no?
A: Yes, Judge.
Q: Now, are you asking for pre-conclusion voluntary departure?
A: Yes, Judge.
Q: Are you waiving all rights of appeal?
A: Yes, Judge.
Just before closing the August 21 hearing, the IJ granted Kohwarien “voluntary
departure in lieu of removal on or before September 4, 2009.”
Kohwarien filed a notice of appeal with the Board of Immigration Appeals
three days later, stating that he should not have been granted voluntary
departure before his criminal appeal was resolved. In addition, Kohwarien
alleged that his criminal conviction was erroneously considered as part of his
motion to terminate the removal proceedings.
On September 2, 2009, Kohwarien moved the BIA for a “stay and
extension of voluntary departure” on the grounds that his state criminal appeal
rights. Judge Achtsam also explained to Kohwarien that to be eligible for voluntary departure,
“you must waive your right to appeal.”
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and immigration appeal remained pending. Kohwarien’s motion indicated that
he was “co-operating with [DHS] on issues of Voluntary Departure.” Two days
later, Kohwarien filed a second request for a stay of removal so that he could
“acquire enough travel documents to gain lawful entry into [Nigeria].” In this
second stay request, Kohwarien summarized the procedural background behind
his voluntary departure order:
Respondent was granted Voluntary Departure on August 21, 2009,
stating that he should depart the United States on or before
September 4, 2009. The Voluntary Departure relief was initiated by
[DHS] and was granted by the Immigration Judge, but the time
frame given by the Immigration Judge is not enough for Respondent
to adequately and sufficiently prepare for his departure . . . .
In September 2009, Kohwarien filed a second notice of appeal with the
Board, seeking to replace his August 24, 2009 notice of appeal “for good cause.”
In this second notice of appeal, Kohwarien stated that he wanted to “decline the
order of Voluntary Departure by the Immigration judge dated August 21, 2009,”
and, further, that he did “not want this relief and wish[ed] to proceed with
removal proceedings.” Kohwarien asserted two grounds for appeal: that his
state criminal conviction remained pending and that he was “entitled to apply
for a green card” based on his marital status.
Kohwarien’s merits brief to the BIA conceded that he had “answered
affirmatively to the IJ’s questions” and accepted the IJ’s grant of voluntary
departure. Kohwarien argued, however, that he did not “knowingly and
intentionally advocate for this form of relief until DHS brought it to the
attention of the IJ as a means of disposing of the case.” In addition, Kohwarien
argued that “simply saying ‘yes’ to the IJ’s questions does not necessarily mean
that the Respondent clearly and unequivocally understood the IJ’s questions, the
consequences of voluntary departure, and the rights he was giving up.”
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The BIA dismissed the appeal for lack of jurisdiction based on its factual
determination that Kohwarien had waived his right to appeal. The Board found
that the IJ had “clearly explained” to Kohwarien that his request for pre-
conclusion voluntary departure would serve as a waiver of his appellate rights.
The Board also rejected Kohwarien’s claim that he was “more concerned with the
issue of his criminal conviction,” observing that the IJ had explained to
Kohwarien that he was removable based on his presence in the U.S. after the
term authorized by his visa, and not because of any criminal conviction. The
Board further noted that Kohwarien was “provided six continuances to seek
representation in his case.” The BIA concluded that the IJ’s grant of pre-
conclusion voluntary departure was “in accordance with regulation.” The Board
dismissed Kohwarien’s appeal, finding that he “has not made a sufficient
argument that the decision to waive his appeal rights was not a knowing and
intelligent one.” This petition for review followed.
II
We review the BIA’s factual determinations under the substantial
evidence standard. See De Rodriguez v. Holder, 585 F.3d 227, 233 (5th Cir.
2009). This standard “requires only that the Board’s conclusion be based upon
the evidence presented and that it be substantially reasonable.” Carbajal-
Gonzalez v. I.N.S., 78 F.3d 194, 197 (5th Cir. 1996) (citation omitted). We will
affirm the Board’s decision unless the evidence compels a contrary result. See
De Rodriguez, 585 F.3d at 233; 8 U.S.C. § 1252(b)(4)(B) (“[T]he administrative
findings of fact are conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary.”). We review questions of law de novo.
De Rodriguez, 585 F.3d at 233.
A
Kohwarien contends that the BIA erred in dismissing his appeal because
his appeal waiver was not knowingly and intelligently executed. Specifically,
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Kohwarien argues that: (i) he did not request voluntary departure; (ii) the IJ did
not inquire into whether Kohwarien accepted its decision as final; and (iii)
Kohwarien did not understand the IJ’s questions, the consequences of voluntary
departure, or the rights he was giving up.
Kohwarien’s first two arguments are unavailing. Although the IJ was the
first to raise the issue of voluntary departure at the August 21, 2009 removal
hearing, Kohwarien affirmatively requested this relief once the IJ presented it
as an option. In addition, Kohwarien had previously requested voluntary
departure, through counsel, in March 2008.
Kohwarien’s reliance on Ali v. Mukasey, 525 F.3d 171 (2d Cir. 2008), for
the proposition that his appeal waiver was invalid because the IJ failed to ask
him whether he accepted its decision as final is misplaced. In Ali, the Second
Circuit considered whether the BIA had correctly dismissed the petitioner’s
appeal for lack of jurisdiction. There, the BIA found that the petitioner had
waived his right to appeal during removal proceedings based on nothing more
than the petitioner’s affirmative response, through counsel, to the IJ’s inquiry
whether both sides accepted the IJ’s order as “final.” Id. at 172–73. The Second
Circuit reversed, finding that the BIA’s determination that the petitioner had
waived his right to appeal was not based on substantial evidence. Id. at 174; see
also United States v. Fares, 978 F.2d 52, 56–57 (2d Cir. 1992) (finding that an
IJ’s explanation to an unrepresented alien that a removal order was “final” did
not suffice to show that the alien understood that he had waived his right to
appeal that order). Ali did not impose, as Kohwarien contends, a requirement
that immigration judges verify an alien’s understanding of the finality of the IJ’s
orders.
Kohwarien’s third argument—that the record fails to show that he
understood the IJ’s questions, the consequences of voluntary departure, or the
rights he was giving up—is also unavailing.
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Under 8 C.F.R. § 1240.26(b)(1)(i), an immigration judge can only grant an
alien voluntary departure before the conclusion of removal proceedings when
certain conditions are met. One condition is that the alien waive appeal of all
issues. Id. at § 1240.26(b)(1)(i)(D). Following such a waiver, the IJ’s decision
becomes final and may be executed immediately. See 8 C.F.R. §§ 1003.3(a)(1),
1003.39, 1241.1(b). The BIA lacks jurisdiction to review an immigration judge’s
decision if an alien has knowingly and intelligently waived his right to appeal.
See In re Rodriguez-Diaz, 22 I. & N. Dec. 1320, 1322 (B.I.A. 2000); In re Shih, 20
I. & N. Dec. 697, 699 (B.I.A. 1993). The finding of a knowing and intelligent
waiver “is inevitably a fact-specific inquiry.” Ali, 525 F.3d at 174 (citation
omitted).
Here, although the record suggests some initial confusion on the part of
Kohwarien as to the scope of his appellate rights waiver, we do not find the
evidence “so compelling that no reasonable fact finder” could conclude, as the
BIA did, that Kohwarien’s waiver was valid. See Lopez-Gomez v. Ashcroft, 263
F.3d 442, 444 (5th Cir. 2001). Kohwarien affirmatively requested voluntary
departure at a preliminary hearing in March 2008, and again at his final
removal hearing in August 2009. At the August 2009 hearing, the IJ explained
to Kohwarien the necessity of waiving all appellate rights to be eligible for pre-
conclusion voluntary departure, which Kohwarien did without reservation. We
do not require a specific incantation to evidence a valid waiver of appellate
rights, but leave that matter to the immigration judge’s discretion. See Ali, 525
F.3d at 171 (“We reaffirm the IJ’s authority to notify an alien of his right to
appeal and to seek a waiver of the right in any method that sufficiently
safeguards the alien’s right.”); see also Rodriguez-Diaz, 22 I. & N. Dec. at 1323
(“Because the precise articulation of appeal rights required in any given case will
necessarily depend on the circumstances of that case, we do not seek to alter any
statement currently used by an Immigration Judge that satisfactorily
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communicates the right to appeal.”). The IJ’s colloquy here provides substantial
evidence to support the BIA’s finding.
In addition, other aspects of the record undercut Kohwarien’s claim that
his waiver was not knowing and intelligent. The administrative record shows
a pro se petitioner who clearly understood the nature of the proceedings against
him and repeatedly availed himself of alternative methods for seeking relief,
albeit unsuccessfully. Even after he had filed a notice of appeal with the Board,
Kohwarien’s “Motion for Stay and Extension of Voluntary Departure” supports
the Board’s conclusion that Kohwarien understood the consequences of his
acceptance of pre-conclusion voluntary departure. We conclude, on the facts
presented here, that the BIA’s determination that Kohwarien waived his right
to appeal was based on substantial evidence.
B
Relying on Dada v. Mukasey, 554 U.S. 1 (2008), Kohwarien contends
alternatively that the BIA erred in dismissing his appeal because he moved to
withdraw his voluntary departure request before the departure period had
lapsed. Kohwarien argues that although “the procedure he employed to bring
his claim to the attention of the administrative court [i.e., by notice of appeal]
may have been different from that of Dada . . . the end result should be the
same.” We disagree.
In Dada, the Supreme Court addressed the conflict between two provisions
of the Immigration Reform and Immigrant Responsibility Act of 1996. Id., 554
U.S. at 4–5. One part of the Act concerns an alien’s right to file “one motion to
reopen” his or her removal proceedings. See 8 U.S.C. § 1229a(c)(7). Another part
of the Act requires aliens found removable to depart within a statutory timeline,
with the failure to do so carrying certain statutory penalties. Dada, 554 U.S. at
5. But pursuant to regulation, departure has the effect of withdrawing the
alien’s motion to reopen. Id. (citing 8 C.F.R. § 1003.2(d)). As the Court
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recognized, these two conflicting commands—one directing voluntary departure
and the other directing termination of the motion to reopen if the alien
departs—placed aliens in a double bind. Id. The Court resolved the dilemma by
holding that an alien looking to challenge the Board’s decision, by way of a
motion to reopen, must be permitted an opportunity to withdraw from a
voluntary departure agreement prior to expiration of the voluntary departure
period directed by statute. Id. at 22.
Unlike the instant case, the conflict resolved in Dada involved the
petitioner’s motion to reopen under 8 U.S.C. § 1229a(c)(7). As the Court noted,
“[a] motion to reopen is a form of procedural relief that ‘asks the Board to change
its decision in light of newly discovered evidence or a change in circumstances
since the hearing.’” Id., 554 U.S. at 12 (citing 1 C HARLES G ORDON, S TANLEY
M AILMAN, & S TEPHEN Y ALE-L OEHR, I MMIGRATION L AW AND P ROCEDURE
§ 3.05[8][c] (rev. ed. 2007)). In Dada, the petitioner’s motion to reopen was
predicated on new evidence reflecting his valid marriage to a U.S. citizen. Id.
at 6–7.
Here, Kohwarien’s proceeding before the BIA was an appeal of the IJ’s
decision and not a motion to reopen. This distinction is critical. Kohwarien’s
appeal relies not on changed circumstances or newly discovered evidence, but
rather on an allegation of legal error. Dada does not provide an independent
jurisdictional basis for the BIA to have considered Kohwarien’s appeal on the
merits. Instead, it focused on a different form of relief under a separate
statutory provision. Dada is inapposite here. Kohwarien’s sole option to avoid
voluntary departure was to move to reopen the proceedings prior to the
expiration of the departure period. See 8 C.F.R. § 1240.26(e)(1) (“The filing of a
motion to reopen or reconsider prior to the expiration of the period allowed for
voluntary departure has the effect of automatically terminating the grant of
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voluntary departure.”). Kohwarien failed to do so and does not argue that the
BIA should have construed his pleadings as a motion to reopen.
III
For the foregoing reasons, the petition for review is hereby DENIED.3
3
Kohwarien also contends that the immigration judge erred in granting pre-conclusion
voluntary departure, and should have instead granted post-conclusion voluntary departure.
In light of the fact that the IJ granted Kohwarien’s affirmative request for pre-conclusion
voluntary departure before the close of removal proceedings, we find this argument to be
without merit.
12