Interim Decision #3206 

MATTER OF SHIH 

In Exclusion Proceedings 

A-70107635 

Decided by Board August 20, 1993 

(1) The decision of an immigration judge becomes final immediately upon the waiver of 

an alien's right to appeal. 

(2) The Board of Immigration Appeals is without jurisdiction to adjudicate a case in 

which the alien has waived the right to appeaL 

EXCLUDABLE: Act of 1952—Sec. 212(a)(5)(A)(i) [8 U.S.C. § 1182(a)(5)(A)(0)—No 

valid labor certification 

Sec. 212(a)(6)(CXi) [8 U.S.C. § 1182(a)(6)0.4(i))-

Fraud or willful misrepresentation of a material fact 

Sec. 212(a)(7)(A)(i)(I) [8 U.S.C. § 1182(a)(7)(A)(i)(1)1— 

No valid immigrant visa 

ON BEHALF OF APPLICANT: ON BEHALF OF SERVICE: 

Cathy H. Tao, Esquire Charles E. Martinez 

261 South Figueroa Street, Suite 205 General Attorney 

Los Angeles, California 90012 

BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members 

The applicant has filed an appeal from a March 17, 1993, decision 

of the immigration judge_ The appeal will be dismissed for lack of 

jurisdiction. 

In an oral decision on March 17, 1993, the immigration judge found 

that the applicant was excludable on the grounds set forth above, 

determined that he had abandoned his applications for relief, and 

ordered that he be excluded and deported from the United States. 

After issuing her decision, the immigration judge told the applicant 

that he could accept her decision, or, if he thought her decision was 

incorrect or unjust, he could appeal to a higher court. The immigration 

judge specifically told the applicant that if he accepted the decision, it 

would be final_ 

The immigration judge then asked the applicant what he wished to 

do. The applicant replied that it was up to the immigration judge. The 

immigration judge did not accept the applicant's response, telling him 

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Interim Decision #3206 

that it was his decision. She again asked the applicant whether he 

wanted to accept the decision or appeal it. The applicant stated, "I will 

not appeal." 

In her summary of the oral decision, the immigration judge 

determined that the applicant had waived appeal. 

The applicant filed a Notice of Appeal (Form EOIR-26) on 

Monday, March 29, 1993, which is within the time specified in 8 

C.F.R. § 3.38(b) (1993).' With respect to his waiver of the appeal, the 

applicant submits that his waiver was not made intelligently and that it 

was not made after considered judgment. 

An alien in exclusion proceedings must be advised of his right to 

take an appeal from a decision of an immigration judge. Section 236(b) 

of the Immigration and Nationality Act, 8 U.S.C. § 1226(b) (1988); cf 

8 C.F.R. §§ 242.1(c), 242.16(a) (1993) (deportation proceedings). 

The regulations define when a decision of the immigration judge 

becomes administratively final. See 8 C.F.R. § 236.6 (1993); cf. 8 

C.F.R. § 242.20 (1993) (deportation proceedings); see also 8 C.F.R. 

§§ 242.19(b), (c) (1993). 

From the time of its codification on March 2, 1987, until April 5, 

1992, 8 C.F.R. § 3.37 provided: 

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. 

See 52 Fed. Reg. 2931, 2939 (1987). 

However, effective April 6, 1992, 8 C.F.R. § 3.37 was amended and 

redesignated as 8 C.F.R. § 3.39 (1993). See 57 Fed. Reg. 11,568, 

11,573 (1992).2The current regulation provides: 

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. (Emphasis added.) 

The italicized portion of 8 C.F.R. § 3.39 (1993) was added in 1992 

in order to "prevent any confusion in fixing a time certain for a 

decision to be final." 57 Fed. Reg 11,568, 11,570 (1992)_ It is obvious 

that the intent of this revision is to clarify that the decision of the 

'Under 8 C.F.R. § 3.38(b) (1993), aliens have 10 calendar days after service of a 

decision (13 days if the decision is mailed) in which to file a Notice of Appeal with the 

Office of the Immigration Judge having administrative control over the record of 

proceeding. If the final date for filing falls on a Saturday, Sunday, or legal holiday, the 

appeal time is extended to the next business day. Cf. 8 C.F.R. § 242.21(a) (1993) 

(deportation proceedings). See generally Matter of Escobar, 18 I&N Dec. 412 (BIA 

1983). 

2When 8 C.F.R. § 3.37 was amended and redesignated as 8 C.F.R. § 3.39, the crossreferences to it at 8 C.F.R. §§ 236.6 and 242.20 (1993) were inadvertently not updated. 

ACM 
Interim Decision #3206 

immigration judge becomes final immediately upon waiver of the right 

to appeal. 

In these proceedings, the immigration judge advised the applicant 

of his right to appeal the decision. The applicant, after having been 

advised of his rights, waived appeal. At that point, the immigration 

judge's decision became final. See 8 C.F.R. §§ 3.39, 236.6 (1993). 

Because the immigration judge's decision is final, the applicant's 

subsequent attempt to withdraw his waiver by filing a Notice of 

Appeal within the time specified in 8 C.F.R. § 3.38(6) (1993) has no 

effect. Similarly, inasmuch as the immigration judge's decision is final, 

this Board lacks jurisdiction to adjudicate the case before us. 

We note, however, that if the applicant wishes to raise the issue 

regarding whether his waiver was knowingly and intelligently made, he 

should file a motion with the immigration judge. See Matter of 

Mladineo, 14 I&N Dec. 591 (BIA 1974); see also Matter of Anselmo, 20 

I&N Dec. 25 (BIA 1989) (noting that after withdrawal of an appeal, 

jurisdiction over any substantive motion lies with the immigration 

judge). 

Accordingly, the appeal will be dismissed for lack of jurisdiction. 

ORDER: The appeal is dismissed for lack of jurisdiction. The 

record is returned to the local Office of the triunigration Judge without 

further action.