IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-60425

VICENTE MARTINEZ-MARTINEZ, also known as Vincente Martinez, also 

known as Francisco Javier Garcia,

Petitioner

v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,

Respondent

Petition for Review of an Order of

the Board of Immigration Appeals

Before DAVIS, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:

Vicente Martinez-Martinez (“Martinez”) petitions for review of an order 

of the Board of Immigration Appeals (“BIA”) dismissing his appeal on the 

grounds that Martinez had knowingly and intelligently waived his appellate 

rights before the immigration judge (“IJ”) at his initial hearing. We deny the 

petition for review.

Martinez is a citizen of El Salvador who entered the U.S. unlawfully in 

2004. He appeared at a group hearing before an IJ in 2012. There, the IJ 

advised Martinez and the other respondents of their rights. Regarding their 

appellate rights, he stated, “[a]fter I tell you my decision, I’m going to ask

United States Court of Appeals

Fifth Circuit

FILED

October 15, 2014

Lyle W. Cayce

Clerk

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whether you accept the decision or want to appeal. If you accept the decision, 

it will be final today. If you appeal, you will have 30 days to file your appeal 

with the Board of Immigration Appeals.” Thereafter, the IJ addressed 

Martinez individually, in pertinent part as follows:

Judge: 

Sir, do you agree that you are subject to deportation under 

Section 212(a)(6)(A)(i) as an alien who is in the United States 

without permission?

Martinez:

Yes.

Judge: 

I will sustain that charge. If you have to be deported, which 

country do you choose?

Martinez:

El Salvador.

Judge:

Do you want to apply for any of the forms of relief that I 

explained before?

Martinez:

No.

Judge:

Do you fear persecution or torture if removed to El Salvador?

Martinez:

No.

Judge:

Okay, it is the Court’s decision then, sir, that you be removed 

from the United States to El Salvador on the 212(a)(6)(A)(i) 

charge contained in the Notice to Appear. Do you want to 

appeal my decision or do you accept it as final?

Martinez:

Well, I just have a question. Do I have any possibilities for a 

bond or anything like that?

Judge:

You need to apply for a form of relief, sir, and you’re not 

applying for a form of relief. I don’t see a basis to grant you 

bond.

Martinez:

What?

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Judge:

I don’t see a reason to grant you bond.

Martinez:

I’m sorry, I didn’t understand.

Judge:

Okay. Sir, you’re not applying for any form of relief, and you 

have a pretty serious conviction.

Martinez:

I just want to know if I can have a bond, yes or no?

Judge:

I’m not going to grant you bond, no.

Martinez:

Okay.

Judge:

Do you want to appeal my decision or do you accept it as 

final?

Martinez:

I accept it as final.

The question of whether or not a defendant has knowingly and 

intelligently waived his right to appeal is a fact-specific inquiry which we 

review under the substantial evidence standard.1 Under this standard, the 

BIA’s finding is conclusive unless, based on the evidence presented in the 

record, “any reasonable adjudicator would be compelled to conclude to the 

contrary.”2

Several facts preclude a finding that “no reasonable fact finder” could 

reach the same conclusion the BIA has reached.3 These include the IJ’s verbal 

and written explanation of respondents’ appellate rights, Martinez’s negative 

1 Kohwarien v. Holder, 635 F.3d 174, 178-79 (5th Cir. 2011) (citing de Rodriguez v. 

Holder, 585 F.3d 227, 233 (5th Cir. 2009)).The substantial evidence standard was established 

by the Supreme Court in INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992), and essentially 

codified at 8 U.S.C. § 1252(b)(4)(B). See Zhang v. Gonzalez, 432 F.3d 339, 344 (5th Cir. 2005).

2 Kohwarien, 635 F.3d at 176-79.

3 See id. at 179.

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response to the IJ’s question whether Martinez wanted to apply for relief, the 

explanatory responses that the IJ provided to answer Martinez’s questions,

and Martinez’s affirmative statement, “I accept [the IJ’s decision] as final.” 

These facts constitute substantial evidence to support the BIA’s finding that 

Martinez knowingly and intelligently waived his appellate rights. See our 

opinion in Kohwarien v. Holder, which is factually analogous and consistent 

with our decision in this case.4

We conclude that the record amply supports the BIA’s finding that 

Martinez knowingly and intelligently waived his appellate rights at his initial 

hearing. Accordingly, the petition for review is DENIED.

4 Id. at 175-81.

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