Lenin Adali Rodas Alfaro v. U.S. Attorney General

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 09-14208 U.S. COURT OF APPEALS
Non-Argument Calendar ELEVENTH CIRCUIT
APRIL 14, 2010
________________________
JOHN LEY
CLERK
Agency No. A088-253-959

LENIN ADALI RODAS-ALFARO,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________

(April 14, 2010)

Before TJOFLAT, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

Lenin Adali Rodas-Alfaro, a native and citizen of Mexico, through counsel,

petitions us for review of the Board of Immigration Appeals’s (“BIA”) final order

dismissing his appeal of the Immigration Judge’s (“IJ”) order pretermitting his
claims for asylum and withholding of removal under the Immigration and

Nationality Act (“INA”), and relief under the United Nations Convention Against

Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, and

denying his motion to withdraw his waiver of appeal, which the BIA construed as a

motion to reopen. Before the IJ, Rodas-Alfaro accepted voluntary departure and

waived his right to appeal. On appeal, Rodas-Alfaro argues that: (1) the IJ erred by

pretermitting his application for asylum and other relief on the ground that

Rodas-Alfaro previously had withdrawn the application and by not allowing him to

renew his claims, and that the BIA erred in upholding the IJ’s decision; (2) the BIA

failed to consider his claim of ineffective assistance of counsel when it denied his

motion to withdraw the waiver of appeal, as construed as a motion to reopen; and

(3) the BIA erred in denying his motion to withdraw his waiver of appeal,

construed as a motion to reopen, on the ground that he did not establish prima facie

eligibility for relief. After careful review, we deny the petition.

We review only the BIA’s decision where it does not expressly adopt the

IJ’s opinion or reasoning. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.

2001). We review legal issues de novo, and whether a waiver of the right to appeal

is valid is a question of law. See Mohammed v. Ashcroft, 261 F.3d 1244, 1247

(11th Cir. 2001); United States v. Bushert, 997 F.2d 1343, 1352 (11th Cir. 1993)

(addressing a sentence-appeal waiver in a direct criminal case). “We review the
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BIA’s denial of a motion to reopen for an abuse of discretion.” Abdi v. U.S. Att’y

Gen., 430 F.3d 1148, 1149 (11th Cir. 2005). “[R]eview is limited to determining

whether there has been an exercise of administrative discretion and whether the

matter of exercise has been arbitrary or capricious.” Id. (quotation omitted).

First, we reject Rodas-Alfaro’s claim that the IJ erred by pretermitting his

application for asylum and other relief, and that the BIA erred in upholding the IJ’s

decision. In order for an IJ to grant an alien voluntary departure before the

completion of removal proceedings, an alien must waive appeal of all issues. 8

C.F.R. § 1240.26(b)(1)(i). An alien may waive the right to appeal provided that the

alien’s decision is knowing and intelligent. See United States v. Mendoza-Lopez,

481 U.S. 828, 840 (1987) (holding invalid a waiver that was “not considered or

intelligent”). The BIA has stated that “[b]y waiving appeal, an alien relinquishes

the opportunity to obtain review of the [IJ]’s ruling. Thus, it is important that any

waiver be knowingly and intelligently made.” See In re Rodriguez-Diaz, 22 I. &

N. Dec. 1320, 1322 (BIA 2000). The alien may challenge, however, whether the

waiver was knowingly and intelligently made in a motion filed with the IJ. Matter

of Shih, 20 I. & N. Dec. 697, 699 (BIA 1993).

Although we have not explicitly addressed waiver of appeal rights in the

immigration context, it appears that such waivers also must be voluntary. See

Cobourne v. I.N.S., 779 F.2d 1564, 1566 (11th Cir. 1986) (holding that the BIA
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properly found that petitioner had voluntarily and knowingly waived his right to

counsel). The voluntariness of the alien’s decision is a distinct inquiry from

whether the alien’s decision is knowing and intelligent. See Moran v. Burbine, 475

U.S. 412, 421 (1986) (noting, in the context of a habeas petitioner’s Fifth

Amendment claim involving waiver of his Miranda1 rights, the distinction between

and voluntary choice and a knowing and intelligent choice). Thus, the waiver

must have been voluntary in the sense that it was the product of a free
and deliberate choice rather than intimidation, coercion, or deception[,
and] . . . the waiver must have been made with a full awareness of
both the nature of the right being abandoned and the consequences of
the decision to abandon it.

Id. However, “the legal system is replete with situations requiring the making of

difficult judgments as to which course to follow, and . . . there is no constitutional

prohibition against requiring parties to make such choices.” Demore v. Kim, 538

U.S. 510, 530 n.14 (2003) (quotation and ellipsis omitted). In the criminal context,

we have held that, for a defendant’s waiver of his right to appeal his sentence to be

knowing and voluntary, the district court generally must have discussed the waiver

with the defendant. Bushert, 997 F.2d at 1351.

Here, the BIA did not err by upholding Rodas-Alfaro’s waiver of his right to

appeal. For starters, under BIA precedent, Rodas-Alfaro was required to challenge

the validity of his waiver in a motion filed with the IJ, not the BIA. See Matter of

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Miranda v. Arizona, 384 U.S. 436 (1966).
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Shih, 20 I. & N. Dec. at 699. But in any event, his waiver was knowing and

intelligent because he made the decision after consulting with counsel and affirmed

under oath that he understood that he was giving up his right to appeal by

accepting voluntary departure. Mendoza-Lopez, 481 U.S. at 840; Bushert, 997

F.2d at 1351; Rodriguez-Diaz, 22 I. & N. Dec. at 322. His waiver also was

voluntary, even if he accepted it reluctantly, because he gave no indication at the

hearing that his choice to take voluntary departure over challenging the

pretermission of his application resulted from coercion or intimidation. Demore,

538 U.S. at 530 n.14; Bushert, 997 F.2d at 1351; Cobourne, 779 F.2d at 1566.

Moreover, Rodas-Alfaro cannot show that the waiver was invalid because of

his earlier allegedly unintentional withdrawal of his asylum application. He

admitted that he signed the letter withdrawing his application, and, regardless, it

has no bearing on the issue because he was represented by counsel and gave no

indication that his choice to waive his right to appeal was not knowing, intelligent,

and voluntary. Mendoza-Lopez, 481 U.S. at 840; Cobourne, 779 F.2d at 1566. In

short, Rodas-Alfaro’s waiver was valid, and he has thus waived his right to

challenge the IJ’s decision not to consider his application.

We likewise reject Rodas-Alfaro’s argument that the BIA abused its

discretion by failing to address his ineffective-assistance-of-counsel claim. We

recognize that “[o]ne of the grounds an alien may claim in a motion to reopen is
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ineffective assistance of counsel.” Dakane v. U.S. Att’y Gen., 399 F.3d 1269,

1273 (11th Cir. 2005). However, in addition to complying with various procedural

requirements, “a petitioner claiming ineffective assistance of counsel . . . must also

show prejudice.” Id. at 1274. “Prejudice exists when the performance of counsel

is so inadequate that there is a reasonable probability that but for the attorney’s

error, the outcome of the proceedings would have been different.” Id. We must

keep in mind, moreover, that motions to reopen are disfavored, especially in a

removal proceeding, “where, as a general matter, every delay works to the

advantage of the deportable alien who wishes merely to remain in the United

States.” Abdi, 430 F.3d at 1149 (quotation omitted).

The BIA did not abuse its discretion by failing to address Rodas-Alfaro’s

ineffective-assistance-of-counsel claim. This claim only relates to Rodas-Alfaro’s

contention that the “notario” whom he had used to file his application withdrew the

asylum application without his knowledge, and is not related to the actions of his

attorney before the IJ in waiving his right to appeal, which as discussed above,

resulted in a valid waiver of his right to appeal. Therefore, Rodas-Alfaro cannot

show that he was prejudiced by the notario’s actions, see Dakane, 399 F.3d at

1274, and the BIA did not abuse its discretion in not addressing this claim when it

denied the motion to reopen based on Rodas-Alfaro’s failure to show prima facie

eligibility for relief.
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 Finally, we are unpersuaded by Rodas-Alfaro’s claim that the BIA erred in

denying his motion to withdraw his waiver of appeal, which was construed as a

motion to reopen. An alien may file one motion to reopen which “shall state the

new facts that will be proven at a hearing to be held if the motion is granted, and

shall be supported by affidavits or other evidentiary material.” 8 C.F.R. §

1003.2(c)(1); 8 U.S.C. § 1229a(c)(7)(A), (B).

[T]here are at least three independent grounds upon which the Board
may deny a motion to reopen: 1) failure to establish a prima facie
case; 2) failure to introduce evidence that was material and previously
unavailable; and 3) a determination that despite the alien’s statutory
eligibility for relief, he or she is not entitled to a favorable exercise of
discretion.

Al Najjar, 257 F.3d at 1302. When determining whether the petitioner has

established a prima facie claim, “the Board is required to consider the factual

assertions and supporting evidentiary submissions in determining the merit of a

motion to reopen.” Id. at 1303. However, “the alien must be permitted to

withdraw, unilaterally, a voluntary departure request before expiration of the

departure period, without regard to the underlying merits of the motion to reopen.”

Dada v. Mukasey, 128 S.Ct. 2307, 2319 (2008). “Except when certified to the

Board, the decision of the Immigration Judge becomes final upon waiver of appeal

or upon expiration of the time to appeal if no appeal is taken whichever occurs

first.” 8 C.F.R. § 1003.39.

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 The BIA did not abuse its discretion in denying Rodas-Alfaro’s motion. As

an initial matter, Rodas-Alfaro could not unilaterally withdraw his voluntary

departure request because the 120-day time period for departure started on April

11, 2008, and expired, according to the order, on August 11, 2008, 4 days before

he signed the motion to the BIA on August 15, 2008. 8 C.F.R. § 1003.39; Dada,

128 S.Ct. at 2319. Moreover, the BIA did not abuse its discretion in failing to

consider the addendum to his application when it denied the motion to reopen for

failure to establish prima facie eligibility, because Rodas-Alfaro failed to attach the

addendum to his motion or to argue to the BIA that it established prima facie

eligibility. 8 C.F.R. § 1003.2(c)(1). As a result, the addendum was not part of the

supporting evidence for the motion to reopen, and the BIA did not need to consider

it. See id.; Al Najjar, 257 F.3d at 1302. Furthermore, the addendum did not

constitute evidence that was “not available and could not have been discovered or

presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1). For these reasons,

Rodas-Alfaro has not shown that the BIA abused its discretion in denying his

motion.

PETITION DENIED.

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