Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Michael B. Mukasey is *

automatically substituted for former Attorney General Alberto R. Gonzales as respondent in this case.

The Honorable Eric N. Vitaliano, United States District Judge for the Eastern District of New York, sitting by **

designation.

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07-0460-ag

Ali v. Mukasey 

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term, 2007

(Submitted: January 18, 2008 Decided: May 2, 2008)

Docket No. 07-0460-ag

MIRZA ALI,

Petitioner,

v.

MICHAEL B. MUKASEY, Attorney General,*

Respondent.

Before: JACOBS, Chief Judge, CABRANES, Circuit Judge, and VITALIANO, District Judge.

**

Petitioner seeks review of an order of the Board of Immigration Appeals (“BIA”) dismissing his

appeal of a final order of removal. The BIA found that petitioner had waived his right of appeal,

thereby depriving it of jurisdiction over this matter. We conclude that, on the facts presented, the

BIA’s finding that petitioner had waived his right of appeal was not based on substantial evidence.

Petition granted.

USMAN AHMAD, Ahmad & Horn, P.C., New York, NY, for

Petitioner.

DEBORAH GERADS, Trial Attorney, (Peter D. Keisler, Assistant

Attorney General, Leslie McKay, Senior Litigation

Counsel, on the brief), Office of Immigration Litigation,

U.S. Department of Justice, Washington, DC, for

Respondent.
 Ali’s first application for adjustment on the basis of his alleged marriage to a United States citizen was denied 1

in November 1999 for failure to appear with his spouse at an interview concerning his application. In April 2001, Ali

filed another application on the same basis. Because Ali and his spouse failed to appear for an interview, his second

application was denied in July 2002. His third application for adjustment of status was filed in September 2002 and was

denied in 2004 for failure to appear.

 Pursuant to 8 C.F.R. § 1240.10(a)(3), the IJ “shall [a]scertain that the respondent has received . . . a copy of 2

appeal rights” at the outset of proceedings. The record before us does not include any copy of the appeal rights, EOIR41, although it does include a copy of the Notice to Appear. Respondent’s brief assumes, based on the regulation and

petitioner’s failure to state otherwise, that Ali received the copy of appeal rights. Respondent’s Br. 15. Petitioner’s brief

does not address receipt vel non of the form. For the purposes of this appeal, and in the absence of any claims or

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JOSÉ A. CABRANES Circuit Judge:

Petitioner Mirza F. Ali, a native and citizen of Pakistan, seeks review of an order of the Board of

Immigration Appeals (“BIA”) dismissing his appeal for lack of jurisdiction. In re: Mirza F. Ali, No. A 76

552 712 (B.I.A. Jan. 11, 2007). The BIA found that petitioner had waived his right to appeal during

removal proceedings before an Immigration Judge (“IJ”). Petitioner contends that he did not knowingly

and voluntarily waive his right to appeal and that the orders of the IJ and BIA violated his rights of due

process. We reaffirm an 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. As set forth below, however, we

conclude that the colloquy between petitioner’s counsel and the IJ was inadequate to fully apprise

petitioner of his right to appeal and to effectuate a knowing and voluntary waiver of that right.

BACKGROUND

Ali entered the United States in 1996 without inspection. On August 13, 2004, after a series of

unsuccessful attempts to adjust his status, Ali was served with a Notice to Appear. The Notice 1

informed Ali of the charges against him, the nature of the removal proceedings, and his opportunity to

contest the allegations of removability and present evidence on his behalf. The Notice also stated that

“[a]t the conclusion of [his] hearing, [Ali would] have a right to appeal an adverse decision by the

immigration judge.”

Ali first appeared before the IJ pro se, at which time the IJ granted a continuance to allow Ali to

find counsel. At this initial hearing, the IJ established that Ali had received the notice to appear. Two 2
evidence to the contrary, we assume that Ali did receive a copy of the appeal rights. 

3

months later, Ali appeared before the IJ again, this time with counsel. At this hearing, Ali conceded

removability and did not file a request for any form of relief from removal. After granting a further

continuance, the IJ held another hearing. At that hearing, Ali’s counsel stated that Ali “would like to

take an order of [removal] and try to reopen it” at a later date on the basis of a putative employment or

family-based visa. Before entering the removal order, the IJ asked if “both sides accept[ed] [the order]

as final.” Ali’s counsel answered affirmatively. The IJ then ordered Ali removed.

Ali filed a timely notice of appeal before the BIA, claiming that the IJ had erred by denying him

a continuance while his alleged petition for an alien worker visa was pending. After reviewing the IJ’s

order and the transcript of the hearing before the IJ, the BIA concluded that Ali had waived his right to

appeal when his counsel “accepted the finality of the Immigration Judge’s order.” On that basis, the

BIA determined that it did not have jurisdiction to hear Ali’s appeal. The BIA further determined that

whether Ali’s decision to waive his appeal was knowingly and intelligently made was not properly before

it, as Ali had not raised this argument on appeal. Ali now contends that the colloquy between his

counsel and the IJ did not constitute a proper notice of his right to appeal or a valid waiver of his right

to appeal; that his rights to due process were violated by the IJ’s failure to notify him that he was

waiving his appeal; and that the BIA’s summary dismissal denied him due process of law. 

DISCUSSION

We review de novo constitutional challenges to a decision by the BIA and legal conclusions drawn

by BIA, such as the determination that the BIA lacks jurisdiction. See, e.g., Arenas-Yepes v. Gonzales, 421

F.3d 111, 114 (2d Cir. 2005) (legal conclusions); United States v. El-Hage, 213 F.3d 74, 79 (2d Cir. 2000)

(constitutional challenges). We review the BIA’s factual findings under the substantial evidence

standard. See Xiao Ji Chen v. U.S. Dept. of Justice, 471 F.3d 315, 333 -334 (2d Cir. 2006). 

When an IJ finds that an alien is removable, 8 U.S.C. § 1229a(c)(5) requires the IJ to “inform the
 At the outset of the hearing, the IJ advised Rodriguez-Diaz that he had the right to appeal any unfavorable 3

decision of the IJ and noted “[y]our appellate rights are explained on the piece of paper [INS Form I-618, since replaced

by DOJ Form EOIR-41] in front of you.” In re Rodriguez-Diaz, 22 I. & N. Dec. at 1320-21. At the conclusion of the

hearing, the IJ stated:

Based on your admissions to me and based on the documents submitted by the Immigration Service, I find that

you’re removable from the United States as charged. I’m not aware of any relief available to you and you’re not

requesting any relief and, therefore, I order that you be removed from the United States to the Dominican

Republic on the charges contained in the Notice to Appear. Do you accept my decision as a final one?

Id. at 1321. Rodriguez-Diaz then answered, “Yes,” and attorneys for the Immigration and Naturalization Service

indicated that the INS accepted the decision as final. Id.

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alien of the right to appeal [the] decision and of the consequences for failure to depart under the order

of removal.” In re Rodriguez-Diaz, 22 I. & N. Dec. 1320 (BIA 2000), the BIA considered an appeal

brought by an alien who contended, inter alia, that his acquiescence in the finality of the IJ’s order did

not constitute a valid waiver of his right to appeal. Although the alien had been advised of his rights to

appeal both in writing and by the IJ’s initial oral reference at the hearing, id. at 1320-21, the IJ had not 3

explained that acceptance of the IJ’s order as “final” amounted to a waiver of his right to appeal. 

Because it was not clear that the alien, who was unrepresented, understood the implications of the IJ’s

question about finality, the BIA concluded that the alien had not effectively waived his right to appeal. 

Id. at 1323. As the BIA observed:

Asking the parties whether they accept a decision as “final” is a shorthand expression commonly

used by Immigration Judges. It refers to the language of [8 C.F.R. § 1003.39], which provides

for finality of the Immigration Judge’s decision upon waiver of the right to appeal (or upon the

expiration of the time in which to appeal, if no appeal is taken). Those who understand the

meaning of this shorthand expression, such as aliens represented by attorneys or accredited

representatives, may effectively waive appeal in response to this simple question.

Id. at 1322. In United States v. Fares, 978 F.2d 52 (2d Cir. 1992), we noted that a reference to the finality

of an IJ’s order, “[s]tanding alone,”—without any evidence of written notification to the alien of his

right to appeal an order of removal—may constitute an “insufficient basis on which to premise a finding

that [a removable alien] understood he had a right to appeal or a finding that he intelligently and

intentionally waived that right.” Id. at 57. 

We now agree with the BIA that accepting an IJ’s decision as final can serve as an effective
 We consider counsel’s statement that Ali would accept a removal order and seek to reopen proceedings after 4

securing a work visa insufficient because such a strategy is not incompatible with an intent to appeal the IJ’s order. 

5

waiver of appeal when the record of the interaction between the IJ and the alien fairly supports the

conclusion that the alien or his counsel understood the nature of the waiver. See In re Rodriguez-Diaz, 22

I. & N. Dec. at 1322-23. 

The finding of knowing and intelligent waiver is inevitably a fact-specific inquiry. See, e.g., United

States v. Johnson, 391 F.3d 67, 74–75 (2d Cir. 2004) (engaging in factual analysis of alien’s waiver of right

to appeal); In re Rodriguez-Diaz, 22 I. & N. Dec. at 1323 (“[T]he precise articulation of appeal rights

required in any given case will necessarily depend on the circumstances of that case. . . .”); cf. Johnson v.

Zerbst, 304 U.S. 458, 464 (1938) (“The determination of whether there has been an intelligent waiver of

right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that

case, including the background, experience, and conduct of the accused.”); Dallio v. Spitzer, 343 F.3d

553, 563 (2d Cir. 2003) (observing that “the Supreme Court has repeatedly emphasized that a knowing

and intelligent waiver depends on the totality of facts and circumstances in a given case”) (internal

quotation marks omitted). 

In the instant case, the record does not indicate whether Ali’s counsel was familiar with the socalled “shorthand” way in which the IJ sought a waiver of Ali’s right to appeal. First, neither Ali nor his

counsel evinced an understanding that the IJ’s reference to the finality of the order related to Ali’s right

to appeal the order. Second, the record does not indicate that the IJ took any steps to clarify the nature 4

of his question; for example, in asking whether Ali accepted the decision as “final,” the IJ did not

mention the right to appeal or refer to the written notice of the right to appeal given in the Notice to

Appear or EOIR-41. 

Like the BIA, we “do not seek to alter any statement currently used by an Immigration Judge

that satisfactorily communicates the right to appeal.” In re Rodriguez-Diaz, 22 I. & N. Dec. at 1323. 

Nonetheless we observe, consistent with Fares and Rodriguez-Diaz, that absent written notification of the
 Respondent argues that Ali was not prejudiced by the BIA’s refusal to consider the merits of his appeal

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because he is not currently eligible for relief from removal and, to the extent he might be entitled to some form of relief,

he would be able to file a motion to reopen pursuant to 8 C.F.R. § 1003.23(b)(1) to pursue that relief. We believe that the

BIA should address the merits of his appeal in the first instance, and, accordingly, decline to address these arguments. 

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alien’s right to appeal and clarification that acceptance of the IJ’s decision as “final” constitutes a waiver

of appeal, there is insufficient evidence of a knowing and intelligent waiver. Because we cannot be

certain that counsel understood the import of his answer to the IJ’s question, we conclude that, on the

facts presented here, the BIA’s determination that Ali waived his right to appeal was not based on

substantial evidence. 

In sum, the BIA erred in determining that it did not have jurisdiction to consider Ali’s petition.

On remand, the BIA is instructed to consider the merits of petitioner’s appeal. Because we conclude 5

that the BIA’s finding that petitioner waived his right to appeal was not based on substantial evidence,

we need not and do not consider petitioner’s due process challenges. 

CONCLUSION

For the foregoing reasons, the petition for review is GRANTED. As we have completed our

review, the pending motion for a stay of removal in this petition is DISMISSED as moot.