United States Court of Appeals

For the Eighth Circuit

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Nos. 16-1299/16-2128

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Doris Elizabeth Castro-Vargas

lllllllllllllllllllllPetitioner

v.

Jefferson B. Sessions, III, Attorney General of the United States

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lllllllllllllllllllllRespondent

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Petitions for Review of Orders of the

 Board of Immigration Appeals

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 Submitted: March 24, 2017

Filed: April 4, 2017

[Unpublished]

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Before RILEY, ARNOLD, and COLLOTON, Circuit Judges. 

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PER CURIAM.

Jefferson B. Sessions, III has been appointed to serve as Attorney General of 1

the United States, and is substituted as respondent pursuant to Federal Rule of

Appellate Procedure 43(c).
Doris Castro-Vargas, a citizen of El Salvador, petitions for review of two

decisions of the Board of Immigration Appeals (BIA). We deny the petitions.

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At her counseled hearing before an immigration judge (IJ), Castro-Vargas

withdrew her application for immigration relief, indicating that, pursuant to an

agreement with the Department of Homeland Security (DHS), she would instead

accept pre-conclusion voluntary departure and waive appeal. After carefully

questioning Castro-Vargas and her counsel regarding her decision, the IJ allowed her

to withdraw her application and granted her pre-conclusion voluntary departure. 

Castro-Vargas failed to depart, and instead filed a pro se appeal with the BIA,

arguing, asrelevant, that her appeal waiver was not knowing and voluntary. The BIA

found the appeal waiver was valid and dismissed her appeal; her petition for review

of this order is the subject of No. 16-1299. The BIA denied Castro-Vargas’s

subsequent motion to reconsider its dismissal; her petition for review of this order is

the subject of No. 16-2128.

In this court, Castro-Vargas argues (1) the BIA engaged in prohibited factfinding, and violated its own rules, when it determined the merits of her challenge to

the waiver’s validity, instead of remanding the matter to the IJ; (2) the BIA’s waiver

finding violated her due process right to be meaningfully heard, because the BIA did

Because Castro-Vargasraises the constitutional claims that her appeal waiver 2

was not voluntary and that the BIA’s waiver finding violated her due process right

to be meaningfully heard, we have jurisdiction. See 8 U.S.C. § 1252(a)(2)(D)

(declaring that a review of constitutional claims or questions of law raised in a

petition is not precluded); United States v. Mendoza-Lopez, 481 U.S. 828, 839-40

(1987) (holding, if an appeal waiver is not considered or intelligent, an alien’s

removal proceeding violates due process); Tun v. Gonzales, 485 F.3d 1014, 1025 (8th

Cir. 2007) (stating that Due Process Clause entitles immigrant to a fair removal

hearing where she may “fairly present evidence, offer arguments, and develop the

record”).

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not address her assertions that she was coerced into accepting the waiver by DHS’s

conduct; and (3) her appeal waiver was not knowing and voluntary.

First, the BIA had authority to determine whether the appeal waiver was valid. 

See In re Patino, 23 I. & N. Dec. 74, 76 (BIA 2001) (appeal-waiver validity may be

challenged by appeal directly to BIA). Second, Castro-Vargas has not demonstrated

that the BIA violated her due process rights, as the record shows that the BIA

considered and rejected her allegations of coercion. See Lopez v. Heinauer, 332 F.3d

507, 512-13 (8th Cir. 2003) (explaining to establish due process violation, an alien

must demonstrate both fundamental procedural error and resulting prejudice). Third,

the record shows that the BIA was correct in its determination that Castro-Vargas’s

appeal waiver was knowing and voluntary. See Malonga v. Holder, 621 F.3d 757,

764 (8th Cir. 2010) (stating administrative findings of fact are reviewed under

deferential substantial-evidence standard); cf. United States v. Holloway, 128 F.3d

1254, 1256 (8th Cir. 1997) (holding that whether waiver is knowing and intelligent

is a question of fact).

We further conclude the BIA did not abuse its discretion in denying CastroVargas’s motion for reconsideration. See Strato v. Ashcroft, 388 F.3d 651, 654-55

(8th Cir. 2004). The petitions for review are denied.

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