IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-60937

EDDY KOHWARIEN,

Petitioner

v.

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

Respondent

On Petition for Review of an Order of the

Board of Immigration Appeals

Before GARZA, STEWART, and HAYNES, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Petitioner Eddy Kohwarien, a native and citizen of Nigeria, seeks review

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

for lack of jurisdiction. See In re Eddy Kohwarien, No. A097 531 146 (B.I.A. Nov.

24, 2009). The BIA found that Kohwarien had waived his right to appeal during

removal proceedings before an Immigration Judge (“IJ”). Kohwarien now

contends that his waiver was not knowing and intelligent. This matter turns on

whether the record contains substantial evidence to support the BIA’s finding

that it lacked jurisdiction over Kohwarien’s appeal (i.e., whether the record

shows that Kohwarien knowingly and intelligently waived his appellate rights).

We hold that it does, and deny the petition for review accordingly.

United States Court of Appeals

Fifth Circuit

F I L E D

March 4, 2011

Lyle W. Cayce

Clerk

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I

In September 2003, Kohwarien was admitted to the United States on a B-1

non-immigrant business visa that allowed him to remain in the U.S. for a period

not to exceed three months. He failed to depart at the end of his visa term and

settled in New York. In 2006, the Department of Homeland Security (“DHS”)

initiated removal proceedings and served Kohwarien with a Notice to Appear.

The Notice informed Kohwarien of the charge against him—remaining in the

United States for a period longer than permitted by his visa—and notified him,

inter alia, that at the end of the proceedings he would have the right to appeal

any adverse decision by the immigration judge.

At a March 2008 hearing, Kohwarien conceded, through counsel, that he

was removable as charged, but he requested an adjustment of status based on

his recent marriage to a U.S. citizen. See 8 U.S.C. § 1255(a). Alternatively,

Kohwarien requested that he be granted voluntary departure. The Immigration

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Judge continued the hearing so that Kohwarien could assemble his adjustment

of status application, along with several other applications for relief.

In November 2008, after the removal proceedings had been continued five

times so that Kohwarien could prepare his adjustment application, Kohwarien

notified the IJ that his attorney had been suspended from practice by her state

bar. The IJ granted Kohwarien seven additional continuances for the purpose

Voluntary departure is a discretionary form of relief that allows certain aliens to leave 1

the country willingly. See 8 U.S.C. § 1229c(a)(1) (“The Attorney General may permit an alien

voluntarily to depart the United States at the alien’s own expense under this subsection” in

lieu of being subject to removal proceedings). The policy benefits the Government and the

alien alike. See generally Dada v. Mukasey, 554 U.S. 1, 11–12 (2008). When an alien requests

voluntary departure at the conclusion of removal proceedings,the statute provides a voluntary

departure period of not more than 60 days, whereas an alien can receive up to 120 days if he

concedes removability and requests voluntary departure before or during removal proceedings. 

Compare § 1229c(b)(2), with § 1229c(a)(2)(A). 

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of obtaining new counsel. Kohwarien never obtained new counsel, explaining in

July 2009 that he “couldn’t find [an attorney] in Texas.”

In August 2009, after DHS determined that Kohwarien’s adjustment of

status application had been abandoned and all other avenues of relief had been

exhausted, DHS asked the Immigration Judge to order Kohwarien removed.

Kohwarien objected, asking that his removal proceedings be continued while he

pursued an appeal of an unrelated New York criminal conviction. The IJ denied

the request, explaining that Kohwarien’s state criminal appeal had no bearing

on his immigration proceedings. One week later, Kohwarien filed a motion to

terminate the removal proceedings based on the pendency of his state criminal

appeal, as well as his intention to renew his adjustment of status application.

Kohwarien appeared pro se at the August 21, 2009 hearing before the

immigration judge. The IJ first addressed Kohwarien’s motion to terminate the

removal proceedings. The IJ explained to Kohwarien that he was removable for

remaining in the United States longer than permitted by his visa, and not

because of any criminal convictions, and the IJ denied the motion to terminate

accordingly.

The IJ then explained to Kohwarien that he remained eligible for preconclusion voluntary departure despite his criminal conviction. This colloquy

followed:

Q: Whether you get relief is a totally separate issue. Whether

you properly apply for it is a separate issue. You’re obviously

eligible for relief, so far you’ve denied wanting some relief.

That’s your tactical approach. Do you understand?

A: Can you repeat that, Judge?

Q: You’re eligible for some relief and you didn’t want it? Correct?

A: What relief is that, Judge?

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Q: Pre-conclusion voluntary departure.

A: Well, that was decided (indiscernible) my last proceeding last

week.

Q: I can’t hear you.

A: I, I . . .

Q: You did not want it, correct?

A: I never said that, Judge.

Q: Well, do you want it, yes or no?

A: Yes, Judge, I want it.

Q: Are you waiving all rights of appeal, yes or no?

A: I just said I wanted the relief.

Q: Why don’t you try listening to my question and answering it.

Are you waiving all rights of appeal, yes or no?

A: Appealing what, Judge?

Q: I don’t understand you. Tell me again.

A: Well, you just asked me if I’m waiving my right to appeal and

I’m asking you, Judge, what am I appealing?

Q: The decision of the Immigration Judge.

A: What decision, Judge?

Q: Judge Achtsam explained to you your rights and you said you

understood them and now you don’t?

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The IJ appears to be referring to IJ Howard E. Achtsam’s rights advisement at a

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January 14, 2008 hearing, during which he explained to Kohwarien that he could appeal the

IJ’s removal decision and verified that Kohwarien had received a form explaining his appeal

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A: Judge who?

Q: Achtsam in Harlingen.

A: Oh, yes, he was the first Judge (indiscernible) my adjustment

of status.

Q: . . . You seem to have forgotten. I’ll explain it to you. To be

eligible for pre-conclusion voluntary departure you must

qualify, you must waive all rights of appeal, agree you are

removable as charged, and pursue no other relief, must not

have been convicted of certain convictions. You must merit

and timely ask for it, you must have a valid travel document

or establish you’re diligently getting it. Do you understand,

yes or no?

A: Yes, Judge.

Q: Now, are you asking for pre-conclusion voluntary departure?

A: Yes, Judge.

Q: Are you waiving all rights of appeal?

A: Yes, Judge.

Just before closing the August 21 hearing, the IJ granted Kohwarien “voluntary

departure in lieu of removal on or before September 4, 2009.”

Kohwarien filed a notice of appeal with the Board of Immigration Appeals

three days later, stating that he should not have been granted voluntary

departure before his criminal appeal was resolved. In addition, Kohwarien

alleged that his criminal conviction was erroneously considered as part of his

motion to terminate the removal proceedings.

On September 2, 2009, Kohwarien moved the BIA for a “stay and

extension of voluntary departure” on the grounds that his state criminal appeal

rights. Judge Achtsam also explained to Kohwarien thatto be eligible for voluntary departure,

“you must waive your right to appeal.”

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and immigration appeal remained pending. Kohwarien’s motion indicated that

he was “co-operating with [DHS] on issues of Voluntary Departure.” Two days

later, Kohwarien filed a second request for a stay of removal so that he could

“acquire enough travel documents to gain lawful entry into [Nigeria].” In this

second stay request, Kohwarien summarized the procedural background behind

his voluntary departure order:

Respondent was granted Voluntary Departure on August 21, 2009,

stating that he should depart the United States on or before

September 4, 2009. The Voluntary Departure relief was initiated by

[DHS] and was granted by the Immigration Judge, but the time

frame given by the Immigration Judge is not enough for Respondent

to adequately and sufficiently prepare for his departure . . . .

In September 2009, Kohwarien filed a second notice of appeal with the

Board, seeking to replace his August 24, 2009 notice of appeal “for good cause.”

In this second notice of appeal, Kohwarien stated that he wanted to “decline the

order of Voluntary Departure by the Immigration judge dated August 21, 2009,”

and, further, that he did “not want this relief and wish[ed] to proceed with

removal proceedings.” Kohwarien asserted two grounds for appeal: that his

state criminal conviction remained pending and that he was “entitled to apply

for a green card” based on his marital status.

Kohwarien’s merits brief to the BIA conceded that he had “answered

affirmatively to the IJ’s questions” and accepted the IJ’s grant of voluntary

departure. Kohwarien argued, however, that he did not “knowingly and

intentionally advocate for this form of relief until DHS brought it to the

attention of the IJ as a means of disposing of the case.” In addition, Kohwarien

argued that “simply saying ‘yes’ to the IJ’s questions does not necessarily mean

that the Respondent clearly and unequivocally understood the IJ’s questions, the

consequences of voluntary departure, and the rights he was giving up.”

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The BIA dismissed the appeal for lack of jurisdiction based on its factual

determination that Kohwarien had waived his right to appeal. The Board found

that the IJ had “clearly explained” to Kohwarien that his request for preconclusion voluntary departure would serve as a waiver of his appellate rights.

The Board also rejected Kohwarien’s claim that he was “more concerned with the

issue of his criminal conviction,” observing that the IJ had explained to

Kohwarien that he was removable based on his presence in the U.S. after the

term authorized by his visa, and not because of any criminal conviction. The

Board further noted that Kohwarien was “provided six continuances to seek

representation in his case.” The BIA concluded that the IJ’s grant of preconclusion voluntary departure was “in accordance with regulation.” The Board

dismissed Kohwarien’s appeal, finding that he “has not made a sufficient

argument that the decision to waive his appeal rights was not a knowing and

intelligent one.” This petition for review followed.

II

We review the BIA’s factual determinations under the substantial

evidence standard. See De Rodriguez v. Holder, 585 F.3d 227, 233 (5th Cir.

2009). This standard “requires only that the Board’s conclusion be based upon

the evidence presented and that it be substantially reasonable.” CarbajalGonzalez v. I.N.S., 78 F.3d 194, 197 (5th Cir. 1996) (citation omitted). We will

affirm the Board’s decision unless the evidence compels a contrary result. See

De Rodriguez, 585 F.3d at 233; 8 U.S.C. § 1252(b)(4)(B) (“[T]he administrative

findings of fact are conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary.”). We review questions of law de novo.

De Rodriguez, 585 F.3d at 233.

A

Kohwarien contends that the BIA erred in dismissing his appeal because

his appeal waiver was not knowingly and intelligently executed. Specifically,

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Kohwarien argues that: (i) he did not request voluntary departure; (ii) the IJ did

not inquire into whether Kohwarien accepted its decision as final; and (iii)

Kohwarien did not understand the IJ’s questions, the consequences of voluntary

departure, or the rights he was giving up.

Kohwarien’s first two arguments are unavailing. Although the IJ was the

first to raise the issue of voluntary departure at the August 21, 2009 removal

hearing, Kohwarien affirmatively requested this relief once the IJ presented it

as an option. In addition, Kohwarien had previously requested voluntary

departure, through counsel, in March 2008.

Kohwarien’s reliance on Ali v. Mukasey, 525 F.3d 171 (2d Cir. 2008), for

the proposition that his appeal waiver was invalid because the IJ failed to ask

him whether he accepted its decision as final is misplaced. In Ali, the Second

Circuit considered whether the BIA had correctly dismissed the petitioner’s

appeal for lack of jurisdiction. There, the BIA found that the petitioner had

waived his right to appeal during removal proceedings based on nothing more

than the petitioner’s affirmative response, through counsel, to the IJ’s inquiry

whether both sides accepted the IJ’s order as “final.” Id. at 172–73. The Second

Circuit reversed, finding that the BIA’s determination that the petitioner had

waived his right to appeal was not based on substantial evidence. Id. at 174; see

also United States v. Fares, 978 F.2d 52, 56–57 (2d Cir. 1992) (finding that an

IJ’s explanation to an unrepresented alien that a removal order was “final” did

not suffice to show that the alien understood that he had waived his right to

appeal that order). Ali did not impose, as Kohwarien contends, a requirement

that immigration judges verify an alien’s understanding of the finality of the IJ’s

orders.

Kohwarien’s third argument—that the record fails to show that he

understood the IJ’s questions, the consequences of voluntary departure, or the

rights he was giving up—is also unavailing.

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Under 8 C.F.R. § 1240.26(b)(1)(i), an immigration judge can only grant an

alien voluntary departure before the conclusion of removal proceedings when

certain conditions are met. One condition is that the alien waive appeal of all

issues. Id. at § 1240.26(b)(1)(i)(D). Following such a waiver, the IJ’s decision

becomes final and may be executed immediately. See 8 C.F.R. §§ 1003.3(a)(1),

1003.39, 1241.1(b). The BIA lacks jurisdiction to review an immigration judge’s

decision if an alien has knowingly and intelligently waived his right to appeal.

See In re Rodriguez-Diaz, 22 I. & N. Dec. 1320, 1322 (B.I.A. 2000); In re Shih, 20

I. & N. Dec. 697, 699 (B.I.A. 1993). The finding of a knowing and intelligent

waiver “is inevitably a fact-specific inquiry.” Ali, 525 F.3d at 174 (citation

omitted).

Here, although the record suggests some initial confusion on the part of

Kohwarien as to the scope of his appellate rights waiver, we do not find the

evidence “so compelling that no reasonable fact finder” could conclude, as the

BIA did, that Kohwarien’s waiver was valid. See Lopez-Gomez v. Ashcroft, 263

F.3d 442, 444 (5th Cir. 2001). Kohwarien affirmatively requested voluntary

departure at a preliminary hearing in March 2008, and again at his final

removal hearing in August 2009. At the August 2009 hearing, the IJ explained

to Kohwarien the necessity of waiving all appellate rights to be eligible for preconclusion voluntary departure, which Kohwarien did without reservation. We

do not require a specific incantation to evidence a valid waiver of appellate

rights, but leave that matter to the immigration judge’s discretion. See Ali, 525

F.3d at 171 (“We reaffirm the 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.”); see also Rodriguez-Diaz, 22 I. & N. Dec. at 1323

(“Because the precise articulation of appeal rights required in any given case will

necessarily depend on the circumstances of that case, we do not seek to alter any

statement currently used by an Immigration Judge that satisfactorily

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communicates the right to appeal.”). The IJ’s colloquy here provides substantial

evidence to support the BIA’s finding.

In addition, other aspects of the record undercut Kohwarien’s claim that

his waiver was not knowing and intelligent. The administrative record shows

a pro se petitioner who clearly understood the nature of the proceedings against

him and repeatedly availed himself of alternative methods for seeking relief,

albeit unsuccessfully. Even after he had filed a notice of appeal with the Board,

Kohwarien’s “Motion for Stay and Extension of Voluntary Departure” supports

the Board’s conclusion that Kohwarien understood the consequences of his

acceptance of pre-conclusion voluntary departure. We conclude, on the facts

presented here, that the BIA’s determination that Kohwarien waived his right

to appeal was based on substantial evidence.

B

Relying on Dada v. Mukasey, 554 U.S. 1 (2008), Kohwarien contends

alternatively that the BIA erred in dismissing his appeal because he moved to

withdraw his voluntary departure request before the departure period had

lapsed. Kohwarien argues that although “the procedure he employed to bring

his claim to the attention of the administrative court [i.e., by notice of appeal]

may have been different from that of Dada . . . the end result should be the

same.” We disagree.

In Dada, the Supreme Court addressed the conflict between two provisions

of the Immigration Reform and Immigrant Responsibility Act of 1996. Id., 554

U.S. at 4–5. One part of the Act concerns an alien’s right to file “one motion to

reopen” his or her removal proceedings. See 8 U.S.C. § 1229a(c)(7). Another part

of the Act requires aliens found removable to depart within a statutory timeline,

with the failure to do so carrying certain statutory penalties. Dada, 554 U.S. at

5. But pursuant to regulation, departure has the effect of withdrawing the

alien’s motion to reopen. Id. (citing 8 C.F.R. § 1003.2(d)). As the Court

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recognized, these two conflicting commands—one directing voluntary departure

and the other directing termination of the motion to reopen if the alien

departs—placed aliens in a double bind. Id. The Court resolved the dilemma by

holding that an alien looking to challenge the Board’s decision, by way of a

motion to reopen, must be permitted an opportunity to withdraw from a

voluntary departure agreement prior to expiration of the voluntary departure

period directed by statute. Id. at 22.

Unlike the instant case, the conflict resolved in Dada involved the

petitioner’s motion to reopen under 8 U.S.C. § 1229a(c)(7). As the Court noted,

“[a] motion to reopen is a form of procedural relief that ‘asks the Board to change

its decision in light of newly discovered evidence or a change in circumstances

since the hearing.’” Id., 554 U.S. at 12 (citing 1 CHARLES GORDON, STANLEY

MAILMAN, & STEPHEN YALE-LOEHR, IMMIGRATION LAW AND PROCEDURE

§ 3.05[8][c] (rev. ed. 2007)). In Dada, the petitioner’s motion to reopen was

predicated on new evidence reflecting his valid marriage to a U.S. citizen. Id.

at 6–7.

Here, Kohwarien’s proceeding before the BIA was an appeal of the IJ’s

decision and not a motion to reopen. This distinction is critical. Kohwarien’s

appeal relies not on changed circumstances or newly discovered evidence, but

rather on an allegation of legal error. Dada does not provide an independent

jurisdictional basis for the BIA to have considered Kohwarien’s appeal on the

merits. Instead, it focused on a different form of relief under a separate

statutory provision. Dada is inapposite here. Kohwarien’s sole option to avoid

voluntary departure was to move to reopen the proceedings prior to the

expiration of the departure period. See 8 C.F.R. § 1240.26(e)(1) (“The filing of a

motion to reopen or reconsider prior to the expiration of the period allowed for

voluntary departure has the effect of automatically terminating the grant of

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voluntary departure.”). Kohwarien failed to do so and does not argue that the

BIA should have construed his pleadings as a motion to reopen.

III

For the foregoing reasons, the petition for review is hereby DENIED.

3

Kohwarien also contends that the immigration judge erred in granting pre-conclusion 3

voluntary departure, and should have instead granted post-conclusion voluntary departure.

In light of the fact that the IJ granted Kohwarien’s affirmative request for pre-conclusion

voluntary departure before the close of removal proceedings, we find this argument to be

without merit. 

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