NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 13a0154n.06
No. 12-3547
UNI TED STATES COURT OF A PPEAL S FOR THE SI XTH CI RCUI T

ROGEL I O AL VARADO- L OPEZ , Petitioner,

v. ERI C H. HOL DER, J R., Attorney Gene ral, Respondent. ) ) ) ) ) ) ) ) ) ON PETI TI ON F OR REVI EW FROM A FI NAL ORDER OF TH E BO ARD OF I MMI GRATI ON APPEAL S

Be fore : MARTI

N and SUTTON , Circuit J udg es; HOOD , District J udg e. *

PER C URI AM. Roge lio Alvarado- L opez, a native a nd citizen of Guatema la, petitions for revie w of a decision by the Boa rd of I mmigration Appea ls (B oard) dismiss ing his appea l for lack of jurisdiction. A lv a r a d o - L o p e z claimed that he last enter ed the United States in 2006 near Nog ales, Ar iz o n a , without a valid entry document. After being stopped in T ennesse e for driving without a license in September 2009, Alvara d o -Lop ez was taken into custody and remova l proce eding s wer e

commence d. Alvara do-L opez conce ded the char g es ag ains t him. At his hear ing befor e an I mmigration J udg e (I J ), Alvara do-L opez testified that did not want to return to Guatema la beca use he neede d to support his pare nts in Guatema la, who wer e elder ly and could not work. He denied that

The Honora

ble J oseph M

. Ho od, United States District J udg e for the Easter n District of * Kentucky , sitti ng by

desig nation.No. 12-3547 - 2 - he was afr aid to return to Guatema la based on any fea r of perse cution. He also testified that he had an aunt in the United States, but no other family

. The I J ex p l ai n ed to Alvara do-L opez that, based on his testimony , he was not elig ible for

ca n ce l lation of remova l, and asked Alvara do-L opez if he wished to elec t voluntary depar ture. Alvara do-L opez responde d that he had attempted, unsucce ssfully , to re t ai n a lawy er. The I J questioned Alvar ado-L opez about his alleg ed efforts to hire a cer tain lawy er, but Alvara do-L opez could not supply

the lawyer’ s last name or a ddress. Alva rado- L opez had no re ceipt to support his alleg ation that he had made an initial pay ment to the lawy er and the rec ord was void of any Notice of Appe ara

nce by an attorne y

on Alvara do-L opez’s behalf

. The I J reminded Alvara do-L opez that h e had been g iven six months from the date of his initial hear ing to obtain a lawy er, and that it was not the court’s responsibility to contac t one for him. The I J g rante d Alvara do-L opez voluntary depar ture up to November 2 4 , 2 0 1 0, 120 day s from the date of the I J ’s decision. The I J asked Alvara do-L opez if he would acc ept that decision and waive his rig ht to an appea l. Alvara do-L opez replied in the aff irmative, and the hear ing was closed. The I J issued an order , without opinion, g ranting Alvara do-L opez volunt ar y d ep arture and order ing Alvara do-L o p ez remove d from the United States should Alvara do-L opez fail to depar t by the deadline. Alvara do-L opez then fil ed an appea l with the B oard. The Boa rd dismissed the case based

on its finding that Alvara do-L opez had waive d his rig ht to appea l when he acc epted the I J ’s gra nt of voluntary depar

ture, pursuant to 8 U.S.C. § 1229c(a ). The Boa rd further found that Alvara doL opez failed to prese nt any argument that his waiver was not knowing ly and intelligently made. I n support of his petition f

or re view, Alvar ado-L opez arg ues that he w as denie d due proc ess bec ause he wa s confuse d at the hea ring reg arding the forms of r elief tha t may have been available to him. He states that if the case is rema nded, h e wo u l d pursue asy lum and relief under the Convention Ag ainst Torture.No. 12-3547 - 3 - Where the Boa

rd revie ws an I J ’s decision and issues a separ ate opini o n r a th e r than summarily aff irming the I J ’s decision, as in this case , we revie w the Boa rd’s decision as the final ag ency deter mination. Shaya v. Holder , 586 F.3d 401, 405 (6th Cir. 2009). We revie w de novo leg al issues relating to statutory require ments of the immigration laws. Matovski v. Gonzales , 492 F.3d 722, 731 (6th Cir. 2007). Although we g ener ally lack subject matter jurisdiction from decisions g ranting or denying voluntary depar

ture, we may revie w de novo Alvarad o -Lop ez ’s claim that the Board had jurisdiction to consider his appea l beca use this is a leg al question. “Pre- conclusion” volunta ry depar ture, the ty

pe g rante d to Alvara do-L opez in this case , permits an alien to de part the c ountry voluntarily

prior to the completion of remova l pr ocee dings. See 8 U.S.C. § 1229c(a )(2)

. As one of the conditions for pre- conclusion vo luntary depar ture, an alien must waive the rig ht to appea l all issues. 8 C.F.R. § 1240.26(b)( 1)(i)( D). On ce an alien knowing ly and intelligently waives his rig ht to appea l when acc epting pre- con cl u s i o n voluntary depar ture, the Boa

rd n o l ong er has jurisdiction to revie w t he I J ’s decision. Kohwari en v. Holder , 635 F.3d 174, 179 ( 5th Cir. 2011); Narine v. Holder , 559 F.3d 246, 248 n.2 ( 4th Cir. 2009). Alvara do-L opez arg

ues t hat hi s waiver was not knowin gl y and int ellige ntly made because he was confuse d by the I J ’s quest i o n s an d explanation of relief

. Howeve r, as the Boa

rd noted, Alvara do-L opez failed to prese nt this argument befor e the Boa rd. Thus, he has failed to exhaust this claim and we lack jurisdiction to consider i t. See 8 U.S.C. § 1252(d)( 1); Lin v. Holder , 565 F.3d 971, 978 (6th Cir. 2009) ; Sterkaj v. Gonzales , 439 F.3d 273, 279 (6th Cir. 2006). Alvara do-L opez also failed to exhaust his claim that his attorney abandone d him, imply i ng that he rec eived ineffe ctive assistanc e of c ounsel. Even if we we re t o co n s ider Alvara do-L opez’s due proce ss claim, it would fail beca use Alvara do-L opez has not shown that he was prejudice d by any defe ct in the proce eding

. See Ndrecaj v. Muk asey , 522 F.3d 667, 673 ( 6th Cir. 2008). Alvara do-L opez arg ues that he c ould have shown that he was entitled to asy lum or relief under the Convention Ag ainst Torture

. Howeve r, Alvara do-No. 12-3547 - 4 -
L opez has prese nted no evidenc e t h at he has a fea r of returning to Guatema la or that he may be tortured upon his return. See 8 U.S.C. § 1101(a) (42)( A); 8 C.F.R. § 208.16(c) (3); Namo v. Gonzales , 401 F.3d 453, 458 ( 6th Cir. 2005). The pe tition for reviewis denied.