Ivis Alexander-Mendoza v. Attorney General United States

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 21-2322 & 21-3089

______

IVIS ALEXANDER-MENDOZA,

Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA

____________

On Petition for Review of an

Order of the Board of Immigration Appeals

(A093-493-496)

Immigration Judge: Alice Song Hartye

____________

Argued: June 28, 2022

Before: JORDAN, PORTER, and PHIPPS, Circuit Judges.

(Filed: December 2, 2022)

____________

Valentine A. Brown

Ryan F. Monahan [Argued]

DUANE MORRIS

30 South 17th Street

Philadelphia, PA 19103

Counsel for Petitioner

Jeffrey M. Hartman [Argued]

Jessica Dawgert

Margot P. Kniffin

UNITED STATES DEPARTMENT OF JUSTICE

OFFICE OF IMMIGRATION LITIGATION

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Counsel for Respondent

_______________________

OPINION OF THE COURT

_______________________

PHIPPS, Circuit Judge.

These consolidated petitions both concern the validity of a

detained alien’s waiver of an administrative appeal in a

removal proceeding. The alien’s initial counsel withdrew, and

the alien represented himself at the merits hearing on his

requests for relief from removal. After denying the alien’s

requests and ordering the alien’s removal, the Immigration

Judge informed the alien that he had a right to administratively

appeal the removal order to the Board of Immigration Appeals

and that the right could be waived. Following a brief break,

the alien waived that right, testifying that he would rather be

deported than remain in custody. But then days afterward, the

2

alien filed a pro se notice of appeal. Later, in a brief filed with

the BIA by pro bono counsel, the alien disputed the order of

removal.

The BIA issued an order dismissing the administrative

appeal. It determined that the waiver of an administrative

appeal was valid, and on that basis, it enforced the appellate

waiver.

The alien then filed a motion for reconsideration with the

BIA. He argued that the waiver was invalid for several

reasons. The BIA issued an order denying that motion.

Through separate petitions, which have been consolidated

in this case, the alien challenges the BIA’s two orders. Because

the administrative record does not compel the conclusion that

the alien’s waiver was invalid, and because the BIA did not

abuse its discretion in denying the alien’s motion to reconsider,

both petitions will be denied.

FACTUAL BACKGROUND

(FROM THE ADMINISTRATIVE RECORD)

As a teenager, Ivis Alexander Mendoza-Cloters

(‘Mendoza’) worked as an auto mechanic in his native city of

El Progeso, Honduras. Two gangs in that city recruited him,

and he rebuffed those efforts for years. But after he lost his

job, one of the gangs, MS-13, would intercept him on his way

to the store and beat him with a machete handle for 13 minutes

at a time. That period of nearly daily beatings occurred

between 2000 and 2001.

To escape and also to find employment, Mendoza entered

the United States in 2002 at age 18 without inspection or

parole. He settled in New Jersey, where he had family.

Between 2004 and 2008, he was arrested three separate

times and charged with several crimes: burglary, criminal

3

mischief, harassment, making terroristic threats, and unlawful

possession of a weapon. Those charges stemmed from

domestic issues with his then-girlfriend. Although most of

those charges were eventually dismissed, Mendoza was

convicted of criminal mischief.

In May 2008, while Mendoza was in the Middlesex County

Jail, Immigration and Customs Enforcement agents found him

and initiated removal proceedings against him. Later that year,

Mendoza accepted voluntary departure and returned to his

country of citizenship, Honduras.

His homecoming to El Progreso did not go well. The MS-

13 gang robbed him, stabbed him, and broke his nose.

Mendoza again illegally entered the United States in

October 2009 and returned to New Jersey. He found work as

an auto mechanic and this time did not catch the attention of

the authorities for over a decade. But in August 2020, after a

domestic disturbance at his house with his girlfriend at the

time, he was arrested and charged with simple assault. That

charge alerted immigration authorities to his illegal presence,

and he was held in custody on an immigration detainer. The

next month, the Department of Homeland Security served

Mendoza with a Notice to Appear thus charging him as

removable for entering without inspection or parole. See

8 U.S.C. § 1182(a)(6)(A)(i). Included with the Notice to

Appear were lists of pro bono immigration legal services

providers in his region.

PROCEDURAL HISTORY

A. PROCEEDINGS IN IMMIGRATION COURT

Mendoza’s removal proceedings involved hearings on four

dates between October 2020 and January 2021. Before the first

hearing, an attorney entered an appearance on Mendoza’s

behalf in Immigration Court.

4

The initial hearing was a master calendar hearing before an

Immigration Judge in Falls Church, Virginia. Mendoza

appeared through a video link from the facility where he was

detained, and his counsel appeared telephonically – as they

each would do for every subsequent hearing that they attended.

After inquiring about which language Mendoza understood

best, the Immigration Judge, through a Spanish language

interpreter, asked Mendoza whether the attorney appearing on

his behalf represented him and was authorized to speak on his

behalf. Mendoza responded affirmatively. From there, his

counsel asked for a continuance, which the Immigration Judge

granted.

During that continuance, Mendoza, through his attorney,

made two filings. Using a Form I-589, he applied for several

forms of relief from removal: asylum, statutory withholding of

removal, and protection under the Convention Against Torture.

He also moved for release on bond and attached statements

from three persons who endorsed his good character.

The case resumed before an Immigration Judge in York,

Pennsylvania. At the next hearing, Mendoza, through counsel,

conceded removability and informed the Immigration Judge

that he would pursue only relief from removal. That same day,

in a hearing on Mendoza’s bond motion, a dispute arose

between Mendoza’s attorney and DHS counsel over the extent

of Mendoza’s criminal history. Mendoza’s attorney stated that

Mendoza had only the arrest related to the recent domestic

disturbance, but the DHS attorney identified past arrests and

the conviction for criminal mischief. To resolve that issue, the

Immigration Judge questioned Mendoza, who admitted to the

recent arrest for domestic violence, as well as his other arrests

and charges between 2004 and 2008. With those additional

details, the Immigration Judge denied Mendoza release on

bond because he failed to establish that he was not a danger to

the community.

5

After that hearing, Mendoza’s counsel moved to withdraw

from representation. That motion explained that counsel had a

conversation with Mendoza and his family, and that Mendoza

wished to proceed pro se.

The next hearing was supposed to be the merits hearing to

address Mendoza’s application for relief from removal.

Mendoza’s counsel attended, but Mendoza could not

participate – even by video teleconference – due to a COVID-

19 quarantine order at his detention facility. Recognizing that

the merits hearing should not proceed in Mendoza’s absence,

the Immigration Judge instead addressed the pending motion

for counsel’s withdrawal. In a colloquy with Mendoza’s

counsel, the Immigration Judge confirmed that counsel had

spoken with Mendoza and had understood that Mendoza

wished to proceed pro se:

IJ: [Y]ou indicate that you have

spoken to your client and he was in

agreement with the withdrawal

request. Is that right?

Counsel: Yes, Your Honor. We, we had

spoken to – I spoke to the client

through an interpreter from our

office and then also with the family

members. Initially we had only

been hired for the first proceeding

and also bond. I asked him if they

wanted to proceed with an attorney

or what they wanted to do. From

my last conversation with the

family, and the individual who is

actually a friend who initially hired

us, it looks like he was going to be

6

proceeding pro se, at least that was

our understanding.

Hr’g Tr. at 10:11–19 (Dec. 8, 2020) (App. 181). The

Immigration Judge then granted the attorney’s motion to

withdraw, and postponed the merits hearing for five weeks.

At the merits hearing on January 14, 2021, the Immigration

Judge acknowledged that Mendoza was not represented by

counsel. Then, after admitting statements of support submitted

by his girlfriend and his coworker, the Immigration Judge

examined Mendoza, who described the abuse that gangs had

inflicted upon him in Honduras. In articulating his fears

associated with returning to Honduras, Mendoza focused on

the gang violence, but he also raised concerns about

unemployment and hurricanes.

After a brief recess, the Immigration Judge announced that

she would deny Mendoza’s requests for relief from removal.

She found Mendoza credible but determined that his claims did

not warrant relief. His application for asylum was too late, and

he did not qualify for withholding of removal or protection

under CAT because he did not demonstrate a likelihood of

either persecution or torture.

Before adjourning the hearing, the Immigration Judge

informed Mendoza of his right to administratively appeal her

decision. See 8 C.F.R. § 1003.3(a)(1). The Immigration Judge

explained that Mendoza could waive that right, and she

provided a preview of the consequences for both alternatives:

You do have a right to appeal to the higher Court,

the Board of Immigration Appeals, or you can

waive your right to appeal. By waiving your

right, what that means is your case would be final

today. And I just want you to understand, sir,

that if you do reserve appeal, you would, most

likely, continue to remain detained during the

7

pendency of your appeal. I’m not trying to deter

you from reserving appeal, but I just want you to

be fully, fully aware of that. I don’t know how

long an appeal will take, but I will tell you that

in the other cases I’ve seen, it seems to be taking,

in some cases, it could be up to a year. I just

don’t know.

Merits Hr’g Tr. at 58:7–14 (App. 174).

With that explanation, the Immigration Judge asked

Mendoza whether he wanted to reserve or waive the right to

appeal. In posing that question, the Immigration Judge

emphasized that Mendoza did not have to decide immediately,

and she offered to “reserve [his] right to appeal and . . . proceed

that way,” if Mendoza was “not sure.” Id. at 58:18–19

(App. 174). She also afforded Mendoza time to speak with his

girlfriend, which he did. After a brief break, Mendoza returned

and announced that he wanted to waive his right to

administrative appeal:

Mendoza: Yes. I’ve decided, I’ve decided to

take the deportation, even though

that I’m afraid to go there, but if

I’m not going to be released on a

bond to fight my case on the

outside, I don’t want to be

incarcerated for any longer.

IJ: Okay. And, sir, I do recognize

that. I just want to make sure if

you do accept it, it’s final today. It

is final and you can’t later change

your mind and say you want to

appeal the decision. So hearing

that, sir, do, do you still want to

accept the decision as final and

waive your right to appeal?

8

Mendoza: No. I want to – I don’t – I want to

leave. I don’t want to be locked up

in here any longer. I have not

killed anyone. Those are the

terrorists that attacked the Capitol.

IJ: Okay. So you want to waive your

right to appeal and accept it as

final, correct?

Mendoza: Yes. . . .

Id. at 60:22–61:11 (App. 176–77). On the understanding that

neither party would appeal, the Immigration Judge issued a

final removal order.

B. ADMINISTRATIVE APPEAL BEFORE THE BIA

Any sense of closure that came with that order disappeared

eleven days later, when Mendoza filed a pro se notice of

appeal. In briefing the appeal, Mendoza was represented by

new pro bono counsel, and he disputed the Immigration

Judge’s denials of statutory withholding and protection under

CAT. He also claimed that his prior counsel’s performance

materially damaged his case. The government responded by

defending the Immigration Judge’s challenged rulings.

Although neither party addressed Mendoza’s waiver of

administrative appeal, the BIA did not lose sight of that issue.

It considered sua sponte the validity of Mendoza’s waiver and

determined that he had waived the right. The BIA then

dismissed Mendoza’s appeal for lack of jurisdiction.

Mendoza used a dual-track strategy to challenge that order.

He timely petitioned this Court to review the order. He also

filed a motion for reconsideration with the BIA. In that filing,

he argued that his statements to the Immigration Judge did not

amount to a waiver of administrative appeal. He also asserted

9

that even if his statements could be construed as a waiver, any

such waiver was unenforceable because he received ineffective

assistance of counsel, was later abandoned by counsel, and was

not notified at any time by the Immigration Judge of his right

to counsel. The BIA denied Mendoza’s motion for

reconsideration. It determined that Mendoza “d[id] not

establish any error of fact or law in [the BIA’s] prior decision,”

explaining that the Immigration Judge “informed [Mendoza]

many times that he was waiving his right to appeal the

decision,” and he “affirmatively replied that he wanted to

waive his right to appeal.” BIA Opinion Mot. Recons. at 2

(App. 10). The BIA similarly rejected Mendoza’s remaining

arguments because he failed to connect the alleged deficiencies

to “his personal decision to waive his right to appeal.” Id.

Mendoza timely petitioned this Court to review the order

denying his motion for reconsideration.

Those petitions fall within this Court’s jurisdiction, see

8 U.S.C. § 1252(a)(1), and they were consolidated for purposes

of resolution, see 8 U.S.C. § 1252(b)(6) (requiring

consolidation of review of order and motion to reconsider).

DISCUSSION

An alien’s right to administratively appeal a removal order

is not grounded in the Constitution.1 Instead, for a period, a

statute, the Immigration and Nationality Act of 1952, expressly

provided a right to appeal decisions of special inquiry officers

to the Attorney General.2 Over time, implementing regulations

1

See Dia v. Ashcroft, 353 F.3d 228, 242 (3d Cir. 2003) (en

banc) (“Quite clearly, ‘[a]n alien has no constitutional right to

any administrative appeal at all.’” (quoting Albathani v. INS,

318 F.3d 365, 376 (1st Cir. 2003))); Guentchev v. INS, 77 F.3d

1036, 1037–38 (7th Cir. 1996).

2

See Immigration and Nationality Act of 1952, Pub. L. No.

414, § 236(b), 66 Stat. 163, 200 (1952) (codified at 8 U.S.C.

§ 1226(b) (1952)) (“From a decision of a special inquiry

10

restructured the BIA and also conferred it with appellate

jurisdiction,3 and special inquiry officers were retitled as

Immigration Judges.4 After it was amended in 1996, the

Immigration and Nationality Act no longer expressly provides

a right to an administrative appeal; rather, the statute requires

only notice of the right to an administrative appeal:

If the immigration judge decides that the alien is

removable and orders the alien to be removed,

the judge shall inform the alien of the right to

appeal that decision and of the consequences for

failure to depart under the order of removal,

including civil and criminal penalties.

Illegal Immigration Reform and Immigrant Responsibility Act

of 1996, Pub. L. No. 104-208, sec. 304(a)(3), § 240(c)(4),

110 Stat. 3009, 3009-593 (1996) (currently codified at

8 U.S.C. § 1229a(c)(5)); cf. 8 U.S.C. § 1158(d)(5)(A)(iii), (iv)

(referencing the administrative appeal process). At present, an

alien’s right to administratively appeal a removal order exists

officer excluding an alien, such alien may take a timely appeal

to the Attorney General, and any such alien shall be advised of

his right to take such appeal.”).

3

While the BIA had existed within the Office of the Attorney

General since 1940, see Regulations Governing Departmental

Organization and Authority, 5 Fed. Reg. 3502, 3503 (Sept. 4,

1940) (establishing the BIA within the Office of the Attorney

General), regulations following the 1952 Act reorganized the

BIA in the Department of Justice and clarified its

administrative appellate jurisdiction, see Miscellaneous

Amendments to Chapter, 23 Fed. Reg. 9115, 9117 (Nov. 26,

1958).

4

See Immigration Judge, 38 Fed. Reg. 8590, 8590 (Apr. 4,

1973) (amending regulations to provide that “[t]he term

‘immigration judge’ means special inquiry officer and may be

used interchangeably with the term special inquiry officer”).

11

solely by virtue of the implementing regulations. See 8 C.F.R.

§ 1003.38(a); id. § 1003.1(b)(3); id. § 1003.3(a)(1); see also

Albathani v. INS, 318 F.3d 365, 376 (1st Cir. 2003)

(“[A]dministrative appeal rights as exist are created by

regulations promulgated by the Attorney General.”).

An alien may waive that regulatory right to an

administrative appeal. To be valid, such a waiver must be

knowing, intelligent, and voluntary. See Richardson v. United

States, 558 F.3d 216, 219–20 (3d Cir. 2009) (“An alien validly

waives his rights associated with a deportation proceeding only

if he does so voluntarily and intelligently.”); Rodriguez-Diaz,

22 I. & N. Dec. 1320, 1322 (BIA 2000) (“[I]t is important that

any waiver be knowingly and intelligently made.” (citing

United States v. Mendoza-Lopez, 481 U.S. 828, 840 (1987))).

A valid waiver of an administrative appeal strips the BIA of its

appellate jurisdiction. See In re Patino, 23 I. & N. Dec. 74, 76

(BIA 2001) (en banc) (“[T]he Board may not exercise

jurisdiction over a case once the right to appeal has been

waived.”); see also 8 C.F.R. § 1003.3(a)(1) (“A Notice of

Appeal may not be filed by any party who has waived appeal

pursuant to § 1003.39.”). And, without the BIA having

jurisdiction, an Immigration Judge’s order becomes final. See

8 C.F.R. § 1003.39.

Both of Mendoza’s petitions hinge on the validity of his

waiver. If Mendoza can establish that he did not validly waive

an administrative appeal, then this case should be remanded to

the BIA to consider the merits of his appeal. If he cannot, then

the BIA correctly declined jurisdiction over his administrative

appeal, and Mendoza’s petitions should be denied. For the

reasons below, Mendoza cannot establish the invalidity of his

waiver of his right to an administrative appeal, and his petitions

will be denied.

12

A. MENDOZA’S FIRST PETITION

Mendoza’s first petition challenges the BIA’s initial order

dismissing his administrative appeal. In that order, the BIA

explained that Mendoza validly waived his appellate rights,

and therefore it declined jurisdiction. Because his criminal

history is not severe enough to trigger the criminal-alien bar,

see 8 U.S.C. § 1252(a)(2)(C), Mendoza can challenge that

factual finding in federal court. See id. § 1252(b)(9).

1. Standard of Review for Agency Factual

Findings in Immigration Proceedings

Judicial review of factual challenges to a removal order

proceeds under the highly deferential substantial evidence

standard. See Galeas Figueroa v. Att’y Gen., 998 F.3d 77, 91

(3d Cir. 2021).

As a baseline, ‘substantial evidence’ is a term of art in

administrative law. Traditionally, it described an analytical

framework for both the breadth and depth of judicial review of

agency factfinding. As far as breadth, in reviewing an agency’s

finding of a fact, a court should consider the “whole record.”

5 U.S.C. § 706; Universal Camera Corp. v. NLRB, 340 U.S.

474, 488 (1951). For trial-like adjudications, the whole record

typically includes the “transcript of the testimony and exhibits,

together with all papers and requests filed in the proceeding,”

5 U.S.C. § 556(e), as well as initial findings by agency

decisionmakers, see id. § 557(c) (“All decisions, including

initial, recommended, and tentative decisions, are a part of the

record.”). Review of the whole record also involves “tak[ing]

into account whatever in the record fairly detracts from” a

factual finding. Universal Camera, 340 U.S. at 488. As for

the depth of judicial scrutiny, a court traditionally evaluates

whether the evidence in the administrative record would allow

a reasonable mind to reach the agency’s conclusion. See

Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 229 (1938)

(“Substantial evidence is more than a mere scintilla. It means

13

such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.”).

For a long period, the traditional substantial evidence

standard governed judicial review of orders in immigration

proceedings. The 1961 amendments to the Immigration and

Nationality Act expressly limited judicial review to the

administrative record, the whole of which would be scrutinized

for substantial evidence:

[Subject to an exception for genuine disputes

about a petitioner’s nationality] the petition shall

be determined solely upon the administrative

record upon which the deportation order is based

and the Attorney General’s findings of fact, if

supported by reasonable, substantial, and

probative evidence on the record considered as a

whole, shall be conclusive.

Immigration and Nationality Act of 1961, Pub. L. No. 87-301,

sec. 5(a), § 106(a)(4), 75 Stat. 650, 651 (1961) (codified at

8 U.S.C. § 1105a(a)(4) (1964)). Following that amendment,

this Court applied the traditional substantial evidence standard

when reviewing agency findings of fact in immigration

proceedings. See, e.g., Amezquita-Soto v. INS, 708 F.2d 898,

902 (3d Cir. 1983); Bastidas v. INS, 609 F.2d 101, 104 (3d Cir.

1979); Sawkow v. INS, 314 F.2d 34, 37–38 (3d Cir. 1963).

But in the early and mid 1990s, the judicial review of

agency factfinding in immigration cases became much more

deferential. In INS v. Elias-Zacarias, 502 U.S. 478 (1992), the

Supreme Court explained that to reverse a factual finding by

the BIA requires “that the evidence not only supports that

conclusion, but compels it . . . .” Id. at 481 n.1. And through

legislation in 1996, Congress conformed the statutory text to

that standard, such that courts had to treat findings of fact in an

immigration proceeding as “conclusive unless any reasonable

adjudicator would be compelled to conclude to the contrary.”

14

Illegal Immigration Reform and Immigrant Responsibility Act

of 1996, Pub. L. No. 104-208, sec. 306(a)(2), § 242(b)(4)(B),

100 Stat. 3009, 3009-608 (codified at 8 U.S.C.

§ 1252(b)(4)(B)); see also Sevoian v. Ashcroft, 290 F.3d 166,

171 (3d Cir. 2002) (“The Reform and Responsibility Act

codifies the language the Supreme Court used in Elias-

Zacarias to describe the substantial evidence standard in

immigration cases.”).

More recent decisions by the Supreme Court confirm that

an agency’s factual findings in immigration proceedings are

reviewed, not under the traditional substantial evidence

standard, but under the highly deferential form of that standard

articulated by Elias-Zacarias and codified in 1996. Compare

Garland v. Ming Dai, 141 S. Ct. 1669, 1677 (2021) (quoting

8 U.S.C. § 1252(b)(4)(B)), and Nasrallah v. Barr, 140 S. Ct.

1683, 1692 (2020) (same), with Biestek v. Berryhill, 139 S. Ct.

1148, 1154 (2019) (applying the traditional substantial

evidence standard in a social security case without the modifier

‘highly deferential’).5 Whether the ‘highly deferential’

modifier serves purely as a description or as a new term of art

is immaterial: in reviewing agency factfinding in an

immigration proceeding, a court examines the whole record,

5

As further corroboration, two recent dissenting opinions,

which reflect the views of a combined six Justices, explain –

not as a disputed point of law but as an established principle –

that the standard of judicial review for agency factfinding in

immigration cases is more deferential than the traditional

substantial evidence standard. See Patel v. Garland, 142 S. Ct.

1614, 1630 (2022) (Gorsuch, J., dissenting) (explaining that

normally federal courts review agency factual findings under

the substantial evidence standard but that “[a] similar, if surely

more deferential, principle finds voice in the INA” (emphasis

added)); Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1076

(2020) (Thomas, J., dissenting) (describing the INA’s standard

for judicial review of agency factfinding as an “extremely

deferential standard”).

15

considers the weight of facts that detract from the agency’s

conclusion, and sets aside the agency’s findings only if a

“reasonable adjudicator would be compelled to conclude to the

contrary.” 8 U.S.C. § 1252(b)(4)(B). To be so compelled, an

alternative finding cannot be simply as persuasive as the

agency’s, or even marginally better – it must be so superior

relative to the agency’s finding that no “reasonable adjudicator

could have found as the agency did” over the alternative. Ming

Dai, 141 S. Ct. at 1678. Also, under this highly deferential

standard, an agency’s failure to consider detracting evidence

does not, by itself, justify setting aside a factual finding.

Rather, for an agency’s finding of fact to be set aside on this

basis, the neglected detracting evidence, if considered, would

have to compel a reasonable adjudicator to reach a contrary

conclusion. See Nasrallah, 140 S. Ct. at 1692; Elias-Zacarias,

502 U.S. at 481.

2. The BIA’s Factual Finding of a Valid

Waiver Must Be Upheld.

Under highly deferential substantial evidence review,

Mendoza’s first petition can succeed only if the administrative

record compels the conclusion that he did not knowingly,

voluntarily, and intelligently waive his right to an

administrative appeal. See 8 U.S.C. § 1252(b)(4)(B). He does

not make that showing.

The record does not compel the conclusion that Mendoza

unknowingly waived his right to an administrative appeal. The

Immigration Judge presented Mendoza with his options: he

could exercise his “right to appeal to the higher court, the

Board of Immigration Appeals, or [he could] waive [his] right

to appeal.” Merits Hr’g Tr. at 58:7–8 (App. 174). The

Immigration Judge then explained that if Mendoza waived that

right, he could not “later change [his] mind and say [that he]

want[ed] to appeal the decision.” Id. at 61:2–3 (App. 177); see

Rodriguez-Diaz, 22 I. & N. Dec. at 1323 (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). Following that

explanation, Mendoza recognized that he had a decision to

make, took a break, and ultimately waived the right to appeal.

Without more, the record does not compel the conclusion that

Mendoza misunderstood the choice before him. Cf. Biwot v.

Gonzales, 403 F.3d 1094, 1098 (9th Cir. 2005) (concluding

that an alien’s waiver of an administrative appeal was invalid

because the alien “was under the misapprehension that he had

no choice but to waive his appeal”).

Although the Immigration Judge explained the right to an

administrative appeal to Mendoza, she did not identify every

downstream consequence of the waiver, such as the loss of a

pathway to judicial review. See 8 U.S.C. § 1252(d)(1) (“A

court may review a final order of removal only if . . . the alien

has exhausted all administrative remedies available to the alien

as of right . . . .”). But complete knowledge of every potential

consequence of a contemplated action is not required for a

knowing waiver. See United States v. Khattak, 273 F.3d 557,

561 (3d Cir. 2001) (“Waivers of the legal consequences of

unknown future events are commonplace. . . . [T]he

prospective nature of waivers has never been thought to place

[them] off limits or to render a defendant’s act unknowing.”

(internal citation and quotation marks omitted)).6 And here,

the Immigration Judge, in informing Mendoza of his right to

an administrative appeal, explained the immediate

consequences of his decision, which Mendoza apparently

understood when he said he accepted those consequences.

Thus, a reasonable adjudicator would not be compelled to

conclude that the absence of a preview of the more remote

6

Consistent with that principle, the BIA fashioned a model

notice that explains the most immediate consequences

associated with the decision to waive an administrative appeal.

In re Rodriguez-Diaz, 22 I. & N. Dec. at 1323 n.2 (setting forth

a model waiver notice that does not mention that an

administrative appeal is needed to preserve judicial review).

17

consequences associated with waiving an administrative

appeal rendered Mendoza’s decision unknowing.

The administrative record similarly does not compel the

conclusion that Mendoza’s waiver was involuntary. After

explaining the appellate options to Mendoza, the Immigration

Judge offered to preserve Mendoza’s right to appeal if he were

uncertain about waiving. The Immigration Judge also allowed

a brief recess for Mendoza to discuss the matter with his

girlfriend. When the proceeding resumed, Mendoza stated that

he wanted to waive the appeal. Upon further questioning by

the Immigration Judge, Mendoza confirmed his intention to

waive his right to appeal.

Despite those facts, Mendoza asserts that his waiver was

coerced. He argues that the Immigration Judge’s forecast that

he might remain in detention for up to year during the

pendency of appeal pressured him to waive his appeal. But it

would require much more than an Immigration Judge’s

predictive assessment of the timeline for an administrative

appeal to compel the conclusion that Mendoza’s waiver was

coerced – particularly since such an informative assessment

could have augmented his knowledge and intelligence in

deciding whether to waive the right. See, e.g., Borbot v.

Warden Hudson Cnty. Corr. Facility, 906 F.3d 274, 278 (3d

Cir. 2018) (discussing not atypical instances where an alien is

detained pending removal for over a year). Because Mendoza

offers nothing more from the administrative record in support

of his coercion contention, he cannot overcome the BIA’s

finding that he voluntarily waived his right to an administrative

appeal.

Similarly, the administrative record does not compel the

conclusion that Mendoza’s waiver was unintelligent. The

decision to waive an administrative appeal for a detained alien

involves deciding between two imperfect options: release from

detention accompanied by a return to an allegedly hostile

homeland, or continued detention during the pendency of

18

further administrative review and potentially judicial review

too. But from the administrative record, Mendoza understood

the limited options before him, and after a break to consider

them, he decided to “take the deportation” despite his stated

fear of returning to Honduras because he did not “want to be

incarcerated for any longer.” Merits Hr’g Tr. at 60:22–24

(App. 176). That was not an unintelligent choice.

In concluding that Mendoza’s waiver was intelligent,

however, the BIA did not consider the fact that he was

representing himself at the time. It may be that if Mendoza

were represented, then his attorney could have provided an

assessment of his case, so that he could have made a more

informed decision about whether to waive administrative

appeal. But the requirement for an intelligent waiver does not

demand that the waiver be premised on the best possible

rationale. Thus, although an assessment from counsel on the

likelihood of success on appeal is potentially beneficial, its

absence does not transform an otherwise intelligent waiver into

an unreasoned decision. Indeed, the decision to waive appeal

is traditionally reserved for the party – not counsel. See McCoy

v. Louisiana, 138 S. Ct. 1500, 1508 (2018) (citing Jones v.

Barnes, 463 U.S. 745, 751 (1983)). Still, even if Mendoza’s

pro se status at the time of his waiver did detract somewhat

from his ability to assess all the possible consequences entailed

in waiving administrative appeal, the BIA’s failure to consider

that fact would not alter the outcome on highly deferential

substantial evidence review: accounting for his lack of counsel

at the time of his waiver does not compel the conclusion that

his waiver was unintelligent.

For these reasons, Mendoza’s first petition will be denied.

B. MENDOZA’S SECOND PETITION

After the dismissal of his administrative appeal, Mendoza

filed a motion to reconsider that order with the BIA. He

advanced several arguments, including three that attacked the

19

validity of his waiver. He claimed that his waiver was invalid

because (i) he was abandoned by counsel; (ii) he received

ineffective assistance of counsel; and (iii) he was not notified

by the Immigration Judge of his right to counsel. The BIA

denied that motion, and through his second petition Mendoza

now presses those three arguments.

1. The Scope and Standard of Review for

Motions to Reconsider Removal Orders

Motions to reconsider BIA decisions contest “the

correctness of the original decision based on the previous

factual record.” Matter of O-S-G-, 24 I. & N. Dec. 56, 57 (BIA

2006); 8 C.F.R. § 1003.2(b)(1) (explaining that a motion to

reconsider focuses on “errors of fact or law in the prior Board

decision”); 8 U.S.C. § 1229a(c)(6)(C) (same). Accordingly,

motions to reconsider cannot raise arguments dependent on

supplemental facts; rather they must be based on the

preexisting administrative record. See In re O-S-G-, 24 I. & N.

Dec. at 57 (“A motion to reconsider contests the correctness of

the original decision based on the previous factual

record . . . .”). Similarly, a motion to reconsider may generally

dispute only the legal propositions previously before the BIA

– either those raised in the alien’s initial appeal or those relied

upon by the BIA sua sponte in resolving the appeal. See id. at

58; see also Lin v. Att’y Gen., 543 F.3d 114, 126 (3d Cir. 2008).

Although a motion to reconsider does not allow a challenge to

a removal order based on evidence not contained in the original

administrative record, such a challenge may be brought

through a motion to reopen, which Mendoza did not file. See

In re O-S-G-, 24 I. & N. Dec. at 57–58; 8 C.F.R.

§ 1003.2(c)(1); compare 8 U.S.C. § 1229a(c)(6) (setting forth

procedural requirements for a motion to reconsider), with id.

§ 1229a(c)(7) (setting forth procedural requirements for a

motion to reopen).

A court reviews an order by the BIA denying a motion to

reconsider for an abuse of discretion. See Castro v. Att’y Gen.,

20

671 F.3d 356, 364 (3d Cir. 2012) (citing Pllumi v. Att’y Gen.,

642 F.3d 155, 158 (3d Cir. 2011)); 8 C.F.R. § 1003.2(a) (“The

decision to grant or deny a motion to . . . reconsider is within

the discretion of the Board, subject to the restrictions of this

section.”). To constitute an abuse of discretion, a BIA order

must be “arbitrary, irrational, or contrary to law.” Borges v.

Gonzales, 402 F.3d 398, 404 (3d Cir. 2005) (internal citation

omitted). The BIA does not abuse its discretion by denying a

motion for reconsideration predicated on either new evidence

or legal arguments that could have been raised earlier because

both of those grounds exceed the permissible limits for such a

motion. Also, in the absence of record evidence compelling a

contrary conclusion, the BIA does not abuse its discretion in

declining to revise its prior factual findings.

2. The BIA Did Not Abuse Its Discretion in

Denying Mendoza’s Motion to

Reconsider.

The BIA dismissed Mendoza’s administrative appeal

because it found that he validly waived the appeal. Due to the

narrow scope of motions to reconsider, Mendoza’s motion

could challenge only that factual finding and only based on the

preexisting administrative record. With those limitations, the

BIA denied Mendoza’s motion to reconsider. As explained

below, the BIA did not abuse its discretion in making that

determination.

a. The BIA Did Not Abuse Its Discretion

in Rejecting Mendoza’s Argument

that His Waiver Was Invalid due to

Abandonment by Counsel.

Mendoza contends that because his former counsel

abandoned him, his waiver of an administrative appeal was

invalid. But the preexisting administrative record does not

compel the conclusions either that Mendoza’s counsel

21

abandoned him or that Mendoza’s waiver was invalid due to

his pro se status at the time.

To support his claim of abandonment by counsel, Mendoza

relied on extra-record factual allegations. He asserted that he

did not know of his counsel’s withdrawal motion; that he did

not consent to the withdrawal; and that he did not wish to

proceed pro se.7 But a motion to reconsider before the BIA is

not an opportunity to supplement the administrative record

with additional evidence. See 8 U.S.C. § 1229a(c)(7)(B);

8 C.F.R. § 1003.2(c)(1). If Mendoza wished to contest the

validity of his waiver of an administrative appeal with extra-

record evidence, then he should have filed a motion to reopen

– a common practice for challenging counsel’s performance in

an immigration proceeding. See, e.g., Contreras v. Att’y Gen.,

665 F.3d 578, 583 (3d Cir. 2012); Fadiga v. Att’y Gen.,

488 F.3d 142, 144 (3d Cir. 2007); Zheng v. Gonzales, 422 F.3d

98, 102 (3d Cir. 2005); Xu Yong Lu v. Ashcroft, 259 F.3d 127,

129 (3d Cir. 2001).8 Because the BIA may not consider those

extra-record factual allegations on a motion to reconsider, it

was not an abuse of discretion for the BIA to reject Mendoza’s

abandonment-of-counsel argument.

Even if the preexisting record did establish that Mendoza

was abandoned by counsel, that would not salvage his

7

Mendoza also alleged that despite repeatedly calling the

attorney’s office, he had not spoken to the attorney since one

call before the bond hearing, and the only response he received

was from a secretary who informed him that the representation

had ended.

8

Mendoza’s reconsideration motion, which was filed by his

pro bono counsel, cannot be construed as a motion to reopen

because it contained only unsworn allegations and not the type

of evidence required to justify reopening the case. See 8 C.F.R.

§ 1003.2(c)(1) (providing that a motion to reopen “shall be

supported by affidavits or other evidentiary material”).

22

argument. The right to seek administrative appeal of the

Immigration Judge’s decision was his and his alone, cf.

McCoy, 138 S. Ct. at 1508, and as explained above, the record

does not compel the conclusion that his waiver was

unknowing, involuntary, or unintelligent. Thus, it was not an

abuse of discretion for the BIA to reject this basis for

Mendoza’s motion for reconsideration.

b. The BIA Did Not Abuse Its Discretion

in Rejecting Mendoza’s Claim that

His Prior Counsel’s Ineffective

Assistance Invalidated His Waiver.

Mendoza next argues that his waiver of an administrative

appeal was invalid due to his former counsel’s deficient

performance at the bond hearing. This contention depends on

a multi-step causal chain, starting with the claim that

Mendoza’s former counsel’s incomplete knowledge of

Mendoza’s criminal history caused the Immigration Judge to

deny his release on bond. From there, Mendoza submits that

because he valued release more than an administrative appeal,

he waived his right to an administrative appeal. He then argues

that he would not have waived administrative appeal had he

been released on bond.

Mendoza has a problem with the first inference in the chain.

The record does not compel the conclusion that his former

counsel’s performance at the bond hearing caused the denial of

his motion for release. After it became apparent that

Mendoza’s attorney did not know the full extent of Mendoza’s

criminal history, the Immigration Judge questioned Mendoza

on that topic. Based on Mendoza’s responses – the truth of

which has never been disputed – the Immigration Judge denied

bond. In light of the prominence of Mendoza’s own testimony

about his criminal history, the record does not compel the

conclusion that his former counsel’s incomplete knowledge of

his criminal history caused the denial of the bond motion. But

even if his former counsel’s performance foreclosed the option

23

of appealing while released on bond, the choice before

Mendoza – appealing while remaining detained or accepting

the ruling and returning to Honduras – was still not coercive or

confounding and thus did not negate the validity of his waiver.

c. The Entire Immigration Proceeding

Was Not Fundamentally Unfair.

As a last resort, Mendoza challenges the fundamental

fairness of the immigration proceedings. In contending that the

Immigration Judge violated due process by not specifically

informing him of his right to representation, Mendoza relies

principally on Leslie v. Attorney General, 611 F.3d 171 (3d

Cir. 2010). In that case, an alien appeared without counsel at

his first hearing in Immigration Court and was not notified by

the Immigration Judge of the availability of pro bono counsel

– as required by regulation. Id. at 174–75, 182; see 8 C.F.R.

§ 1240.10(a)(1)–(3). The alien was ordered removed, and his

administrative appeal was denied by the BIA, all without him

ever having representation. See Leslie, 611 F.3d at 174. In

reviewing the alien’s petition seeking review of that order, this

Court held that, under those circumstances, the proceeding was

fundamentally unfair regardless of whether the absence of

counsel prejudiced the alien. Id.

At the outset, the facts of this case are distinguishable from

Leslie. The record indicates that Mendoza received a list of

pro bono counsel when he was served with the Notice to

Appear. And he did not appear unrepresented at his first

hearing; to the contrary, the Immigration Judge asked Mendoza

whether he wanted to be represented by the attorney who

appeared, and Mendoza responded that he did. That attorney

also filed an application for relief from removal, moved for

Mendoza’s release on bond, and represented Mendoza at the

bond hearing. The Immigration Judge permitted the attorney’s

withdrawal only after questioning the attorney and, from his

answers, determining that Mendoza wished to proceed pro se.

Thus, the two facts that influenced the holding in Leslie – the

24

Immigration Judge’s violation of a regulation requiring notice

of pro bono counsel and the lack of initial representation – are

not present here.

But even if Leslie were extended to this situation, it would

not alter the outcome. Leslie makes voidable removal orders

in cases in which the Immigration Judge does not inform the

alien of the availability of pro bono counsel and the alien

proceeds pro se. But Leslie does not automatically void all

orders from such an immigration proceeding.9 Rather, to raise

a Leslie due process challenge, an alien must timely appeal the

order to the BIA – as occurred in Leslie. See Leslie, 611 F.3d

at 174; see also 8 U.S.C. § 1252(d)(1); Castro, 671 F.3d at 365

(“A petitioner’s failure to exhaust an issue by presenting it to

the BIA deprives us of jurisdiction to consider that issue.”).

And here, Mendoza waived his right to an administrative

appeal. Accordingly, even if Leslie were expanded to reach

these facts, Mendoza could not litigate that issue now.

CONCLUSION

For the foregoing reasons, we will deny the consolidated

petitions for review.

9

A contrary conclusion would undercut Leslie’s core holding

by unfairly prejudicing aliens who receive mixed relief in

Immigration Court. For example, a pro se alien who did not

receive a list of pro bono legal service providers, and who was

denied asylum but was granted CAT deferral may wish to

administratively appeal the denial of asylum. But if the lack of

notice of pro bono legal services would automatically void the

proceeding, then the alien could not appeal the denial of

asylum while retaining CAT deferral. Instead, the alien would

have to choose between appealing (which would void the entire

order including his CAT deferral) and not appealing (which

would require forgoing seeking asylum).

25