Kohwarien v. Holder
2011 U.S. App. LEXIS 4371
| 5th Cir. | 2011Background
- Kohwarien, a Nigerian citizen, entered the U.S. on a B-1 visa in September 2003 and overstayed the visa term.
- DHS initiated removal proceedings in 2006 and served a Notice to Appear detailing the charge and right to appeal at proceedings' end.
- In March 2008, Kohwarien conceded removability and sought adjustment of status based on marriage to a U.S. citizen, or voluntary departure in the alternative.
- Proceedings were continued five times to allow Kohwarien to prepare his adjustment petition; Kohwarien did not secure new counsel and remained pro se.
- In August 2009, after DHS deemed his adjustment abandoned, the IJ denied a termination request and granted pre-conclusion voluntary departure, with a waiver of all appellate rights.
- Kohwarien filed a notice of appeal with the BIA three days later; the BIA dismissed for lack of jurisdiction, holding the waiver of appeal was knowing and intelligent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the waiver of the right to appeal was knowing and intelligent | Kohwarien argues waiver was not knowing due to confusion | BIA held waiver supported by IJ colloquy and record | Waiver found to be knowing and intelligent |
| Whether the IJ's explanation and Kohwarien's actions show valid waiver despite Ali-like concerns | Ali v. Mukasey requires more explicit inquiry | IJ properly notified and Kohwarien affirmed relief and waiver | Record shows substantial evidence of valid waiver |
| Whether Dada v. Mukasey governs Kohwarien's appeal given the voluntary departure context | Dada requires withdrawal option before expiration of departure | Dada does not apply to a straight appeal; motion to reopen not at issue | Dada inapplicable; proper avenue was appeal, which was waived |
Key Cases Cited
- Ali v. Mukasey, 525 F.3d 171 (2d Cir. 2008) (IJ may notify and safeguard right to appeal; no strict incantation required)
- In re Rodriguez-Diaz, 22 I. & N. Dec. 1320 (BIA 2000) (knowing and intelligent waiver required for review jurisdiction)
- In re Shih, 20 I. & N. Dec. 697 (BIA 1993) (scope of waiver and finality of orders underpin jurisdictional issue)
- Dada v. Mukasey, 554 U.S. 1 (U.S. 2008) (motion to reopen different from waiver of appeal; not controlling here)
- Lopez-Gomez v. Ashcroft, 263 F.3d 442 (5th Cir. 2001) (substantial evidence standard in waiver determinations)
- United States v. Fares, 978 F.2d 52 (2d Cir. 1992) (IJ explanation of finality not dispositive of understanding of waiver)
- de Rodriguez v. Holder, 585 F.3d 227 (5th Cir. 2009) (standard of review for BIA factual findings is substantial evidence)