explaining that “[a]sking the parties whether they accept a decision as ‘final’ is a shorthand expression commonly used by Immigration Judges” and “[t]hose who understand the meaning of this shorthand expression, such as aliens represented by attorneys or accredited representatives, may effectively waive appeal in response to this simple question” (emphasis added)
How later courts described this case
- explaining that “[a]sking the parties whether they accept a decision as ‘final’ is a shorthand expression commonly used by Immigration Judges” and “[t]hose who understand the meaning of this shorthand expression, such as aliens represented by attorneys or accredited representatives, may effectively waive appeal in response to this simple question” (emphasis added)
- holding that “in cases involving unrepresented aliens,” the Immigration Judge 16 should typically provide the alien a “more detailed explanation[]” of the right to appeal
- advising IJs to inform respondents: “If you want to appeal my decision, or if you want to think about appeal and decide later, you must reserve appeal now.”
- stressing that “in cases involving unrepresented aliens, more detailed explanations [of the alien’s right to appeal] are often needed”
Written by the judges who cited it.
The opinion
Interim Decision #3431
In re Miguel Antonio RODRIGUEZ-DIAZ, Respondent
File A34 510 049 - Fishkill
Decided May 18, 2000
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
An unrepresented alien who accepts an Immigration Judge’s decision as “final” does not
effectively waive the right to appeal where the Immigration Judge failed to make clear that
such acceptance constitutes an irrevocable waiver of appeal rights; therefore, the Board of
Immigration Appeals has jurisdiction to consider the alien’s appeal.
Pro se
Bonnie A. Schroeck, Assistant District Counsel, for the Immigration and Naturalization Service
Before: Board Panel: MATHON, FILPPU, and MOSCATO, Board Members.
FILPPU, Board Member:
In a decision dated December 30, 1998, an Immigration Judge ordered
the respondent removed from the United States to the Dominican Republic.
The respondent has appealed that decision, alleging impropriety in the man-
ner in which the Immigration Judge conducted the proceedings. The appeal
will be dismissed.
I. BACKGROUND
On October 30, 1998, the respondent was placed in removal proceed-
ings on account of his convictions for criminal possession of a firearm and
criminal possession of heroin. On December 30, 1998, he appeared before
the Immigration Judge, who explained to the respondent the charges against
him, his right to counsel, and the ways that he might obtain counsel. The
Immigration Judge also advised the respondent as follows:
You also have the right to appeal if I make a decision you’re not happy with. You have
30 days to appeal. Your appeal must be in English in writing directly to the Board of
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Interim Decision #3431
Immigration Appeals in Virginia. Your appellate rights are explained on the piece of
paper in front of you.1
The Immigration Judge then offered to continue the hearing to provide
the respondent an opportunity to obtain legal counsel, but the respondent
stated that he wanted to proceed. After establishing the country of removal,
the Immigration Judge repeated his offer to continue the hearing, but the
respondent reiterated that he wanted to proceed. It appears that the respon-
dent wanted to be removed, evidently believing that an order of removal
would allow him to depart the United States without serving the remainder
of his criminal sentence. After attempting to dissuade the respondent from
that assumption, the Immigration Judge took the respondent’s pleadings
and accepted evidence of his criminal convictions. The Immigration Judge
concluded the hearing with the following statement:
Based on your admissions to me and based on the documents submitted by the
Immigration Service, I find that you’re removable from the United States as charged.
I’m not aware of any relief available to you and you’re not requesting any relief and,
therefore, I order that you be removed from the United States to the Dominican
Republic on the charges contained in the Notice to Appear. Do you accept my decision
as a final one?
In response to the Immigration Judge’s question, the respondent simply
answered, “Yes.” Counsel for the Immigration and Naturalization Service
also accepted the decision as final. On the written order of removal, the
Immigration Judge indicated that both parties had waived appeal. The
respondent has timely appealed that decision.
II. ISSUES
The respondent contests the fairness of his removal proceedings,
focusing on the conduct of the Immigration Judge. However, before
addressing his arguments, we must first resolve the question of our juris-
diction over this appeal because the Immigration Judge’s order reflects
that both parties waived appeal. Specifically, we must determine whether
an unrepresented alien waives the right to appeal by accepting an
Immigration Judge’s decision as “final” when the Immigration Judge has
not made it clear that such an acceptance constitutes an irrevocable waiv-
er of the alien’s appeal rights.
1
The regulations require the Immigration Judge to provide the alien with a copy of a
Written Notice of Appeal Rights (Form I-618) at the outset of proceedings. 8 C.F.R. §
240.48(a) (2000).
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Interim Decision #3431
III. JURISDICTION
We do not have jurisdiction over the decision of an Immigration Judge
once the parties waive their right to appeal. Matter of Shih, 20 I&N Dec.
697 (BIA 1993). Whenever the right to appeal is waived, the decision of
the Immigration Judge becomes final and may be implemented immediate-
ly. See 8 C.F.R. §§ 3.3(a)(1), 3.39 (2000). Achieving immediate finality of
an Immigration Judge’s decision is important, especially for a detained
alien who has no interest in appeal and wishes only to depart. Waiver of
appeal permits the execution of a removal order prior to expiration of the
30-day appeal period, thereby sparing the alien additional time in custody
and taxpayers the expense of needless detention.
By waiving appeal, an alien relinquishes the opportunity to obtain
review of the Immigration Judge’s ruling. Thus, it is important that any
waiver be knowingly and intelligently made. See United States v. Mendoza-
Lopez, 481 U.S. 828, 840 (1987); see also Matter of Shih, supra. In fact, the
statute specifically requires that an alien be notified of his or her right to
appeal if an Immigration Judge orders removal. Section 240(c)(4) of the
Immigration and Nationality Act, 8 U.S.C. § 1229a(c)(4) (Supp. II 1996);
see also Matter of Ocampo, 22 I&N Dec. 1301 (BIA 2000) (holding that
120 days’ voluntary departure may not be granted prior to the completion
of removal proceedings without an express waiver of the right to appeal).
At the close of the hearing in this case, the Immigration Judge asked the
respondent whether he accepted the decision as “final.” Although the
respondent said that he did, he nevertheless filed a timely appeal. We must
therefore decide whether the respondent’s acceptance of the decision as
“final,” by itself, constitutes an effective waiver of his right to appeal.
Asking the parties whether they accept a decision as “final” is a short-
hand expression commonly used by Immigration Judges. It refers to the lan-
guage of 8 C.F.R. § 3.39, which provides for finality of the Immigration
Judge’s decision upon waiver of the right to appeal (or upon the expiration
of the time in which to appeal, if no appeal is taken). Those who understand
the meaning of this shorthand expression, such as aliens represented by
attorneys or accredited representatives, may effectively waive appeal in
response to this simple question.
However, the meaning and significance of this shorthand expression
may not be apparent to the unrepresented alien. Asking an unrepresented
alien whether he or she accepts a decision as “final” does not necessarily
alert the alien to the fact that the question concerns the right of appeal or
that an affirmative answer will be construed as an irrevocable waiver of that
right. See United States v. Fares, 978 F.2d 52, 55 (2d Cir. 1992) (finding that
no valid appeal waiver arises from an affirmative answer to the question,
“[Y]ou’re accepting orders of deportation . . . as final in your case with no
appeal?”). Aliens unfamiliar with removal proceedings may misconstrue
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Interim Decision #3431
the question asked by the Immigration Judge in this case as simply a refer-
ence to the end of the proceeding before the Immigration Judge and may not
necessarily understand that it contemplates the final resolution of the case.
Furthermore, it is unlikely that the intended meaning of this question will
become clearer when translated into the various languages that are spoken
by aliens in immigration proceedings.
We appreciate that the right to appeal may be discussed with parties of
all levels of sophistication who appear before Immigration Judges. Because
the precise articulation of appeal rights required in any given case will nec-
essarily depend on the circumstances of that case, we do not seek to alter
any statement currently used by an Immigration Judge that satisfactorily
communicates the right to appeal. However, we also recognize that, in cases
involving unrepresented aliens, more detailed explanations are often need-
ed. Thus, we are more likely to find a valid waiver where an Immigration
Judge has adequately conveyed both the alien’s appeal options and the final-
ity associated with waiving appeal.2
In this instance, we find that the respondent has not waived appeal. The
simple inquiry at the end of the hearing, focusing on acceptance of a deci-
sion as “final,” was not adequate to ensure that the unrepresented alien
understood the import of the Immigration Judge’s question. Even with the
Immigration Judge’s discussion of the right to appeal at the outset of the
hearing, it is not evident that the respondent understood the implications of
accepting the decision as “final.” Consequently, regardless of whether the
respondent actually contemplated taking an appeal on the day of the hear-
ing, we hold that an effective waiver of appeal did not occur and that the
appeal is properly before us.
IV. ARGUMENTS ON APPEAL
2
For example, the following is one reasonably comprehensive formulation of an appro-
priate discussion of appeal rights:
You have the right to appeal my decision. You do not have to decide today if you want
to appeal, but you should decide soon. You can also give up your right to appeal by
waiving it.
If you want to appeal my decision, or if you want to think about appeal and decide
later, you must reserve appeal now. If you reserve appeal, you will have 30 days from
today to file your appeal with the Board of Immigration Appeals. Your notice of appeal
must actually arrive at and be received by the Board within 30 days. Your appeal right
will be lost if the notice of appeal arrives late.
If you do not want to appeal my decision, you may waive appeal. If you waive appeal,
my decision becomes final, and your case is completely finished. You cannot change
your mind later and try to file an appeal. Do you understand?
Do you want to reserve appeal or waive appeal?
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Interim Decision #3431
On appeal, the respondent does not assert eligibility for any particular
form of relief but argues only that his hearing was procedurally deficient.
The respondent maintains that his ignorance of the immigration laws pre-
vented him from understanding the proceeding or the consequences of his
testimony. He also contends that the Immigration Judge denied him due
process by improperly assuming the Service’s “prosecutorial” role and by
“forcing” him to represent himself.
We find the respondent’s arguments to be without merit. The
Immigration Judge performed his duties in accordance with both the letter
and the spirit of the law. See section 240(b)(1) of the Act; see also 8 C.F.R.
§ 240.10(c) (2000). The Immigration Judge requested pleadings in a
straightforward fashion and provided the respondent ample opportunity to
voice objection or uncertainty about the proceedings. Cf. Matter of A-P-,
Interim Decision 3375 (BIA 1999). The Immigration Judge twice offered
to continue the hearing so that the respondent might obtain counsel. It was
the respondent’s decision to proceed despite his ignorance of the immigra-
tion laws. We discern no impropriety in the Immigration Judge’s conduct in
these proceedings and therefore find no reason to overturn the decision of
the Immigration Judge. Accordingly, the respondent’s appeal will be dis-
missed.
ORDER: The appeal is dismissed.
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