Ali v. Mukasey, Docket No. 07-0460-ag.

• Decision Date: 02 May 2008
• Docket Number: Docket No. 07-0460-ag.
• Citation: 525 F.3d 171
• Parties: Mirza ALI, Petitioner, v. Michael B. MUKASEY, Attorney General,<SMALL><SUP>*</SUP></SMALL> Respondent.
• Court: U.S. Court of Appeals — Second Circuit

525 F.3d 171

Mirza ALI, Petitioner, v. Michael B. MUKASEY, Attorney General,^* Respondent.

Docket No. 07-0460-ag.

United States Court of Appeals, Second Circuit.

Submitted: January 18, 2008.

Decided: May 2, 2008.

Usman Ahmad, Ahmad & Horn, P.C., New York, NY, for Petitioner.

Deborah Gerads, Trial Attorney, (Peter D. Keisler, Assistant Attorney General, Leslie McKay, Senior Litigation Counsel, on the brief), Office of Immigration Litigation, U.S. Department of Justice, Washington, DC, for Respondent.

Before: JACOBS, Chief Judge, CABRANES, Circuit Judge, and VITALIANO, District Judge.^**

JOSÉ A. CABRANES, Circuit Judge:

Petitioner Mirza F. Ali, a native and citizen of Pakistan, seeks review of an order of the Board of Immigration Appeals ("BIA") dismissing his appeal for lack of jurisdiction. In re: Mirza F. Ali, No. A 76 552 712 (B.I.A. Jan. 11, 2007). The BIA found that petitioner had waived his right to appeal during removal proceedings before an Immigration Judge ("IJ"). Petitioner contends that he did not knowingly and voluntarily waive his right to appeal and that the orders of the IJ and BIA violated his rights of due process. We reaffirm an 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. As set forth below, however, we conclude that the colloquy between petitioner's counsel and the IJ was inadequate to fully apprise petitioner of his right to appeal and to effectuate a knowing and voluntary waiver of that right.

BACKGROUND

Ali entered the United States in 1996 without inspection. On August 13, 2004, after a series of unsuccessful attempts to adjust his status,¹ Ali was served with a Notice to Appear. The Notice informed Ali of the charges against him, the nature of the removal proceedings, and his opportunity to contest the allegations of removability and present evidence on his behalf. The Notice also stated that "[a]t the conclusion of [his] hearing, [Ali would] have a right to appeal an adverse decision by the immigration judge."

Ali first appeared before the IJ pro se, at which time the IJ granted a continuance to allow Ali to find counsel. At this initial hearing, the IJ established that Ali had received the Notice to Appear.² Two months later, Ali appeared before the IJ again, this time with counsel. At this hearing, Ali conceded removability and did not file a request for any form of relief from removal. After granting a further continuance, the IJ held another hearing. At that hearing, Ali's counsel stated that Ali "would like to take an order of [removal] and try to reopen it" at a later date on the basis of a putative employment or family-based visa. Before entering the removal order, the IJ asked if "both sides accept[ed] [the order] as final." Ali's counsel answered affirmatively. The IJ then ordered Ali removed.

Ali filed a timely notice of appeal before the BIA, claiming that the IJ had erred by denying him a continuance while his alleged petition for an alien worker visa was pending. After reviewing the IJ's order and the transcript of the hearing before the IJ, the BIA concluded that Ali had waived his right to appeal when his counsel "accepted the finality of the Immigration Judge's order." On that basis, the BIA determined that it did not have jurisdiction to hear Ali's appeal. The BIA further determined that whether Ali's decision to waive his appeal was knowingly and intelligently made was not properly before it, as Ali had not raised this argument on appeal. Ali now contends that the colloquy between his counsel and the IJ did not constitute a proper notice of his right to appeal or a valid waiver of his right to appeal; that his rights to due process were violated by the IJ's failure to notify him that he was waiving his appeal; and that the BIA's summary dismissal denied him due process of law.

DISCUSSION

We review de novo constitutional challenges to a decision by the BIA and legal conclusions drawn by BIA, such as the determination that the BIA lacks jurisdiction. See, e.g., Arenas-Yepes v. Gonzales, 421 F.3d 111, 114 (2d Cir.2005) (legal conclusions); United States v. El-Hage, 213 F.3d 74, 79 (2d Cir.2000) (constitutional challenges). We review the BIA's factual findings under the substantial evidence standard. See Xiao Ji Chen v. U.S. Dept. of Justice, 471 F.3d 315, 333-334 (2d Cir.2006).

When an IJ finds that an alien is removable, 8 U.S.C. § 1229a(c)(5) requires the IJ to "inform the alien of the right to appeal [the] decision and of the consequences for failure to depart under the order of removal." In re Rodriguez-Diaz, 22 I. & N. Dec. 1320 (BIA 2000), the BIA considered an appeal brought by an alien who contended, inter alia, that his acquiescence in the finality of the IJ's order did not constitute a valid waiver of his right to appeal. Although the alien had been advised of his rights to appeal both in writing and by the IJ's initial oral reference at the hearing, id. at 1320-21,³ the IJ had not explained that acceptance of the IJ's order as "final" amounted to a waiver of his right to appeal. Because it was not clear that the alien, who was unrepresented, understood the implications of the IJ's question about finality, the BIA concluded that the alien had not effectively waived his right to appeal. Id. at 1323. As the BIA observed:

Asking the parties whether they accept a decision as "final" is a shorthand expression commonly used by Immigration Judges. It refers to the language of [8 C.F.R. § 1003.39], 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.

Id. at 1322. In United States v. Fares, 978 F.2d 52 (2d Cir.1992), we noted that a reference to the finality of an IJ's order, "[s]tanding alone," — without any evidence of written notification to the alien of his right to appeal an order of removal — may constitute an "insufficient basis on which to premise a finding that [a removable alien] understood he had a right to appeal or a finding that he intelligently and intentionally waived that right." Id. at 57.

We now agree with the BIA that accepting an IJ's decision as final can serve as an effective waiver of appeal when the record of the interaction between the IJ and the alien fairly supports the conclusion that the alien or his counsel understood the nature of the waiver. See In re Rodriguez-Diaz, 22 I. & N. Dec. at 1322-23.

The finding of knowing and intelligent waiver is inevitably a fact-specific inquiry. See, e.g., United States v. Johnson, 391 F.3d 67, 74-75 (2d Cir.2004) (engaging in factual analysis of alien's waiver of right to appeal); In re Rodriguez-Diaz, 22 I. & N. Dec. at 1323 ("[T]he precise articulation of appeal rights required in any given case will necessarily depend on the circumstances of that case...."); cf. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) ("The determination of whether there has been an intelligent waiver of right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused."); Dallio v. Spitzer, 343 F.3d 553, 563 (2d Cir.2003) (observing that "the Supreme Court has repeatedly emphasized that a knowing and intelligent waiver depends on the totality of facts and circumstances in a given case") (internal quotation marks omitted).

In the instant case, the record does not indicate whether Ali's counsel was familiar with the so-called "shorthand" way in which the IJ sought a waiver of Ali's right to appeal. First, neither Ali nor his counsel evinced an understanding that the IJ's reference to the finality of the order related to Ali's right to appeal the order.⁴ Second, the record does not indicate that...