Ivis Alexander-Mendoza v. Attorney General United States ( 2022 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 21-2322 & 21-3089
______
IVIS ALEXANDER-MENDOZA,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
____________
On Petition for Review of an
Order of the Board of Immigration Appeals
(A093-493-496)
Immigration Judge: Alice Song Hartye
____________
Argued: June 28, 2022
Before: JORDAN, PORTER, and PHIPPS, Circuit Judges.
(Filed: December 2, 2022)
____________
Valentine A. Brown
Ryan F. Monahan [Argued]
DUANE MORRIS
30 South 17th Street
Philadelphia, PA 19103
Counsel for Petitioner
Jeffrey M. Hartman [Argued]
Jessica Dawgert
Margot P. Kniffin
UNITED STATES DEPARTMENT OF JUSTICE
OFFICE OF IMMIGRATION LITIGATION
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
_______________________
OPINION OF THE COURT
_______________________
PHIPPS, Circuit Judge.
These consolidated petitions both concern the validity of a
detained alien’s waiver of an administrative appeal in a
removal proceeding. The alien’s initial counsel withdrew, and
the alien represented himself at the merits hearing on his
requests for relief from removal. After denying the alien’s
requests and ordering the alien’s removal, the Immigration
Judge informed the alien that he had a right to administratively
appeal the removal order to the Board of Immigration Appeals
and that the right could be waived. Following a brief break,
the alien waived that right, testifying that he would rather be
deported than remain in custody. But then days afterward, the
2
alien filed a pro se notice of appeal. Later, in a brief filed with
the BIA by pro bono counsel, the alien disputed the order of
removal.
The BIA issued an order dismissing the administrative
appeal. It determined that the waiver of an administrative
appeal was valid, and on that basis, it enforced the appellate
waiver.
The alien then filed a motion for reconsideration with the
BIA. He argued that the waiver was invalid for several
reasons. The BIA issued an order denying that motion.
Through separate petitions, which have been consolidated
in this case, the alien challenges the BIA’s two orders. Because
the administrative record does not compel the conclusion that
the alien’s waiver was invalid, and because the BIA did not
abuse its discretion in denying the alien’s motion to reconsider,
both petitions will be denied.
FACTUAL BACKGROUND
(FROM THE ADMINISTRATIVE RECORD)
As a teenager, Ivis Alexander Mendoza-Cloters
(‘Mendoza’) worked as an auto mechanic in his native city of
El Progeso, Honduras. Two gangs in that city recruited him,
and he rebuffed those efforts for years. But after he lost his
job, one of the gangs, MS-13, would intercept him on his way
to the store and beat him with a machete handle for 13 minutes
at a time. That period of nearly daily beatings occurred
between 2000 and 2001.
To escape and also to find employment, Mendoza entered
the United States in 2002 at age 18 without inspection or
parole. He settled in New Jersey, where he had family.
Between 2004 and 2008, he was arrested three separate
times and charged with several crimes: burglary, criminal
3
mischief, harassment, making terroristic threats, and unlawful
possession of a weapon. Those charges stemmed from
domestic issues with his then-girlfriend. Although most of
those charges were eventually dismissed, Mendoza was
convicted of criminal mischief.
In May 2008, while Mendoza was in the Middlesex County
Jail, Immigration and Customs Enforcement agents found him
and initiated removal proceedings against him. Later that year,
Mendoza accepted voluntary departure and returned to his
country of citizenship, Honduras.
His homecoming to El Progreso did not go well. The MS-
13 gang robbed him, stabbed him, and broke his nose.
Mendoza again illegally entered the United States in
October 2009 and returned to New Jersey. He found work as
an auto mechanic and this time did not catch the attention of
the authorities for over a decade. But in August 2020, after a
domestic disturbance at his house with his girlfriend at the
time, he was arrested and charged with simple assault. That
charge alerted immigration authorities to his illegal presence,
and he was held in custody on an immigration detainer. The
next month, the Department of Homeland Security served
Mendoza with a Notice to Appear thus charging him as
removable for entering without inspection or parole. See
8 U.S.C. § 1182(a)(6)(A)(i). Included with the Notice to
Appear were lists of pro bono immigration legal services
providers in his region.
PROCEDURAL HISTORY
A. PROCEEDINGS IN IMMIGRATION COURT
Mendoza’s removal proceedings involved hearings on four
dates between October 2020 and January 2021. Before the first
hearing, an attorney entered an appearance on Mendoza’s
behalf in Immigration Court.
4
The initial hearing was a master calendar hearing before an
Immigration Judge in Falls Church, Virginia. Mendoza
appeared through a video link from the facility where he was
detained, and his counsel appeared telephonically – as they
each would do for every subsequent hearing that they attended.
After inquiring about which language Mendoza understood
best, the Immigration Judge, through a Spanish language
interpreter, asked Mendoza whether the attorney appearing on
his behalf represented him and was authorized to speak on his
behalf. Mendoza responded affirmatively. From there, his
counsel asked for a continuance, which the Immigration Judge
granted.
During that continuance, Mendoza, through his attorney,
made two filings. Using a Form I-589, he applied for several
forms of relief from removal: asylum, statutory withholding of
removal, and protection under the Convention Against Torture.
He also moved for release on bond and attached statements
from three persons who endorsed his good character.
The case resumed before an Immigration Judge in York,
Pennsylvania. At the next hearing, Mendoza, through counsel,
conceded removability and informed the Immigration Judge
that he would pursue only relief from removal. That same day,
in a hearing on Mendoza’s bond motion, a dispute arose
between Mendoza’s attorney and DHS counsel over the extent
of Mendoza’s criminal history. Mendoza’s attorney stated that
Mendoza had only the arrest related to the recent domestic
disturbance, but the DHS attorney identified past arrests and
the conviction for criminal mischief. To resolve that issue, the
Immigration Judge questioned Mendoza, who admitted to the
recent arrest for domestic violence, as well as his other arrests
and charges between 2004 and 2008. With those additional
details, the Immigration Judge denied Mendoza release on
bond because he failed to establish that he was not a danger to
the community.
5
After that hearing, Mendoza’s counsel moved to withdraw
from representation. That motion explained that counsel had a
conversation with Mendoza and his family, and that Mendoza
wished to proceed pro se.
The next hearing was supposed to be the merits hearing to
address Mendoza’s application for relief from removal.
Mendoza’s counsel attended, but Mendoza could not
participate – even by video teleconference – due to a COVID-
19 quarantine order at his detention facility. Recognizing that
the merits hearing should not proceed in Mendoza’s absence,
the Immigration Judge instead addressed the pending motion
for counsel’s withdrawal. In a colloquy with Mendoza’s
counsel, the Immigration Judge confirmed that counsel had
spoken with Mendoza and had understood that Mendoza
wished to proceed pro se:
IJ: [Y]ou indicate that you have
spoken to your client and he was in
agreement with the withdrawal
request. Is that right?
Counsel: Yes, Your Honor. We, we had
spoken to – I spoke to the client
through an interpreter from our
office and then also with the family
members. Initially we had only
been hired for the first proceeding
and also bond. I asked him if they
wanted to proceed with an attorney
or what they wanted to do. From
my last conversation with the
family, and the individual who is
actually a friend who initially hired
us, it looks like he was going to be
6
proceeding pro se, at least that was
our understanding.
Hr’g Tr. at 10:11–19 (Dec. 8, 2020) (App. 181). The
Immigration Judge then granted the attorney’s motion to
withdraw, and postponed the merits hearing for five weeks.
At the merits hearing on January 14, 2021, the Immigration
Judge acknowledged that Mendoza was not represented by
counsel. Then, after admitting statements of support submitted
by his girlfriend and his coworker, the Immigration Judge
examined Mendoza, who described the abuse that gangs had
inflicted upon him in Honduras. In articulating his fears
associated with returning to Honduras, Mendoza focused on
the gang violence, but he also raised concerns about
unemployment and hurricanes.
After a brief recess, the Immigration Judge announced that
she would deny Mendoza’s requests for relief from removal.
She found Mendoza credible but determined that his claims did
not warrant relief. His application for asylum was too late, and
he did not qualify for withholding of removal or protection
under CAT because he did not demonstrate a likelihood of
either persecution or torture.
Before adjourning the hearing, the Immigration Judge
informed Mendoza of his right to administratively appeal her
decision. See 8 C.F.R. § 1003.3(a)(1). The Immigration Judge
explained that Mendoza could waive that right, and she
provided a preview of the consequences for both alternatives:
You do have a right to appeal to the higher Court,
the Board of Immigration Appeals, or you can
waive your right to appeal. By waiving your
right, what that means is your case would be final
today. And I just want you to understand, sir,
that if you do reserve appeal, you would, most
likely, continue to remain detained during the
7
pendency of your appeal. I’m not trying to deter
you from reserving appeal, but I just want you to
be fully, fully aware of that. I don’t know how
long an appeal will take, but I will tell you that
in the other cases I’ve seen, it seems to be taking,
in some cases, it could be up to a year. I just
don’t know.
Merits Hr’g Tr. at 58:7–14 (App. 174).
With that explanation, the Immigration Judge asked
Mendoza whether he wanted to reserve or waive the right to
appeal. In posing that question, the Immigration Judge
emphasized that Mendoza did not have to decide immediately,
and she offered to “reserve [his] right to appeal and . . . proceed
that way,” if Mendoza was “not sure.” Id. at 58:18–19
(App. 174). She also afforded Mendoza time to speak with his
girlfriend, which he did. After a brief break, Mendoza returned
and announced that he wanted to waive his right to
administrative appeal:
Mendoza: Yes. I’ve decided, I’ve decided to
take the deportation, even though
that I’m afraid to go there, but if
I’m not going to be released on a
bond to fight my case on the
outside, I don’t want to be
incarcerated for any longer.
IJ: Okay. And, sir, I do recognize
that. I just want to make sure if
you do accept it, it’s final today. It
is final and you can’t later change
your mind and say you want to
appeal the decision. So hearing
that, sir, do, do you still want to
accept the decision as final and
waive your right to appeal?
8
Mendoza: No. I want to – I don’t – I want to
leave. I don’t want to be locked up
in here any longer. I have not
killed anyone. Those are the
terrorists that attacked the Capitol.
IJ: Okay. So you want to waive your
right to appeal and accept it as
final, correct?
Mendoza: Yes. . . .
Id. at 60:22–61:11 (App. 176–77). On the understanding that
neither party would appeal, the Immigration Judge issued a
final removal order.
B. ADMINISTRATIVE APPEAL BEFORE THE BIA
Any sense of closure that came with that order disappeared
eleven days later, when Mendoza filed a pro se notice of
appeal. In briefing the appeal, Mendoza was represented by
new pro bono counsel, and he disputed the Immigration
Judge’s denials of statutory withholding and protection under
CAT. He also claimed that his prior counsel’s performance
materially damaged his case. The government responded by
defending the Immigration Judge’s challenged rulings.
Although neither party addressed Mendoza’s waiver of
administrative appeal, the BIA did not lose sight of that issue.
It considered sua sponte the validity of Mendoza’s waiver and
determined that he had waived the right. The BIA then
dismissed Mendoza’s appeal for lack of jurisdiction.
Mendoza used a dual-track strategy to challenge that order.
He timely petitioned this Court to review the order. He also
filed a motion for reconsideration with the BIA. In that filing,
he argued that his statements to the Immigration Judge did not
amount to a waiver of administrative appeal. He also asserted
9
that even if his statements could be construed as a waiver, any
such waiver was unenforceable because he received ineffective
assistance of counsel, was later abandoned by counsel, and was
not notified at any time by the Immigration Judge of his right
to counsel. The BIA denied Mendoza’s motion for
reconsideration. It determined that Mendoza “d[id] not
establish any error of fact or law in [the BIA’s] prior decision,”
explaining that the Immigration Judge “informed [Mendoza]
many times that he was waiving his right to appeal the
decision,” and he “affirmatively replied that he wanted to
waive his right to appeal.” BIA Opinion Mot. Recons. at 2
(App. 10). The BIA similarly rejected Mendoza’s remaining
arguments because he failed to connect the alleged deficiencies
to “his personal decision to waive his right to appeal.” Id.Mendoza timely petitioned this Court to review the order
denying his motion for reconsideration.
Those petitions fall within this Court’s jurisdiction, see
8 U.S.C. § 1252(a)(1), and they were consolidated for purposes
of resolution, see 8 U.S.C. § 1252(b)(6) (requiring
consolidation of review of order and motion to reconsider).
DISCUSSION
An alien’s right to administratively appeal a removal order
is not grounded in the Constitution.1 Instead, for a period, a
statute, the Immigration and Nationality Act of 1952, expressly
provided a right to appeal decisions of special inquiry officers
to the Attorney General.2 Over time, implementing regulations
1
See Dia v. Ashcroft, 353 F.3d 228, 242 (3d Cir. 2003) (en
banc) (“Quite clearly, ‘[a]n alien has no constitutional right to
any administrative appeal at all.’” (quoting Albathani v. INS,
318 F.3d 365, 376 (1st Cir. 2003))); Guentchev v. INS, 77 F.3d
1036, 1037–38 (7th Cir. 1996).
2
See Immigration and Nationality Act of 1952, Pub. L. No.
414, § 236(b), 66 Stat. 163, 200 (1952) (codified at 8 U.S.C.
§ 1226(b) (1952)) (“From a decision of a special inquiry
10
restructured the BIA and also conferred it with appellate
jurisdiction,3 and special inquiry officers were retitled as
Immigration Judges.4 After it was amended in 1996, the
Immigration and Nationality Act no longer expressly provides
a right to an administrative appeal; rather, the statute requires
only notice of the right to an administrative appeal:
If the immigration judge decides that the alien is
removable and orders the alien to be removed,
the judge shall inform the alien of the right to
appeal that decision and of the consequences for
failure to depart under the order of removal,
including civil and criminal penalties.
Illegal Immigration Reform and Immigrant Responsibility Act
of 1996, Pub. L. No. 104-208, sec. 304(a)(3), § 240(c)(4),
110 Stat. 3009, 3009-593 (1996) (currently codified at
8 U.S.C. § 1229a(c)(5)); cf. 8 U.S.C. § 1158(d)(5)(A)(iii), (iv)
(referencing the administrative appeal process). At present, an
alien’s right to administratively appeal a removal order exists
officer excluding an alien, such alien may take a timely appeal
to the Attorney General, and any such alien shall be advised of
his right to take such appeal.”).
3
While the BIA had existed within the Office of the Attorney
General since 1940, see Regulations Governing Departmental
Organization and Authority, 5 Fed. Reg. 3502, 3503 (Sept. 4,
1940) (establishing the BIA within the Office of the Attorney
General), regulations following the 1952 Act reorganized the
BIA in the Department of Justice and clarified its
administrative appellate jurisdiction, see Miscellaneous
Amendments to Chapter, 23 Fed. Reg. 9115, 9117 (Nov. 26,
1958).
4
See Immigration Judge, 38 Fed. Reg. 8590, 8590 (Apr. 4,
1973) (amending regulations to provide that “[t]he term
‘immigration judge’ means special inquiry officer and may be
used interchangeably with the term special inquiry officer”).
11
solely by virtue of the implementing regulations. See 8 C.F.R.
§ 1003.38(a); id. § 1003.1(b)(3); id. § 1003.3(a)(1); see also
Albathani v. INS, 318 F.3d 365, 376 (1st Cir. 2003)
(“[A]dministrative appeal rights as exist are created by
regulations promulgated by the Attorney General.”).
An alien may waive that regulatory right to an
administrative appeal. To be valid, such a waiver must be
knowing, intelligent, and voluntary. See Richardson v. United
States, 558 F.3d 216, 219–20 (3d Cir. 2009) (“An alien validly
waives his rights associated with a deportation proceeding only
if he does so voluntarily and intelligently.”); Rodriguez-Diaz,
22 I. & N. Dec. 1320, 1322 (BIA 2000) (“[I]t is important that
any waiver be knowingly and intelligently made.” (citing
United States v. Mendoza-Lopez, 481 U.S. 828, 840 (1987))).
A valid waiver of an administrative appeal strips the BIA of its
appellate jurisdiction. See In re Patino, 23 I. & N. Dec. 74, 76
(BIA 2001) (en banc) (“[T]he Board may not exercise
jurisdiction over a case once the right to appeal has been
waived.”); see also 8 C.F.R. § 1003.3(a)(1) (“A Notice of
Appeal may not be filed by any party who has waived appeal
pursuant to § 1003.39.”). And, without the BIA having
jurisdiction, an Immigration Judge’s order becomes final. See
8 C.F.R. § 1003.39.
Both of Mendoza’s petitions hinge on the validity of his
waiver. If Mendoza can establish that he did not validly waive
an administrative appeal, then this case should be remanded to
the BIA to consider the merits of his appeal. If he cannot, then
the BIA correctly declined jurisdiction over his administrative
appeal, and Mendoza’s petitions should be denied. For the
reasons below, Mendoza cannot establish the invalidity of his
waiver of his right to an administrative appeal, and his petitions
will be denied.
12
A. MENDOZA’S FIRST PETITION
Mendoza’s first petition challenges the BIA’s initial order
dismissing his administrative appeal. In that order, the BIA
explained that Mendoza validly waived his appellate rights,
and therefore it declined jurisdiction. Because his criminal
history is not severe enough to trigger the criminal-alien bar,
see 8 U.S.C. § 1252(a)(2)(C), Mendoza can challenge that
factual finding in federal court. See id. § 1252(b)(9).
1. Standard of Review for Agency Factual
Findings in Immigration Proceedings
Judicial review of factual challenges to a removal order
proceeds under the highly deferential substantial evidence
standard. See Galeas Figueroa v. Att’y Gen., 998 F.3d 77, 91
(3d Cir. 2021).
As a baseline, ‘substantial evidence’ is a term of art in
administrative law. Traditionally, it described an analytical
framework for both the breadth and depth of judicial review of
agency factfinding. As far as breadth, in reviewing an agency’s
finding of a fact, a court should consider the “whole record.”
5 U.S.C. § 706; Universal Camera Corp. v. NLRB, 340 U.S.
474, 488 (1951). For trial-like adjudications, the whole record
typically includes the “transcript of the testimony and exhibits,
together with all papers and requests filed in the proceeding,”
5 U.S.C. § 556(e), as well as initial findings by agency
decisionmakers, see id. § 557(c) (“All decisions, including
initial, recommended, and tentative decisions, are a part of the
record.”). Review of the whole record also involves “tak[ing]
into account whatever in the record fairly detracts from” a
factual finding. Universal Camera, 340 U.S. at 488. As for
the depth of judicial scrutiny, a court traditionally evaluates
whether the evidence in the administrative record would allow
a reasonable mind to reach the agency’s conclusion. See
Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 229 (1938)
(“Substantial evidence is more than a mere scintilla. It means
13
such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.”).
For a long period, the traditional substantial evidence
standard governed judicial review of orders in immigration
proceedings. The 1961 amendments to the Immigration and
Nationality Act expressly limited judicial review to the
administrative record, the whole of which would be scrutinized
for substantial evidence:
[Subject to an exception for genuine disputes
about a petitioner’s nationality] the petition shall
be determined solely upon the administrative
record upon which the deportation order is based
and the Attorney General’s findings of fact, if
supported by reasonable, substantial, and
probative evidence on the record considered as a
whole, shall be conclusive.
Immigration and Nationality Act of 1961, Pub. L. No. 87-301,
sec. 5(a), § 106(a)(4), 75 Stat. 650, 651 (1961) (codified at
8 U.S.C. § 1105a(a)(4) (1964)). Following that amendment,
this Court applied the traditional substantial evidence standard
when reviewing agency findings of fact in immigration
proceedings. See, e.g., Amezquita-Soto v. INS, 708 F.2d 898,
902 (3d Cir. 1983); Bastidas v. INS, 609 F.2d 101, 104 (3d Cir.
1979); Sawkow v. INS, 314 F.2d 34, 37–38 (3d Cir. 1963).
But in the early and mid 1990s, the judicial review of
agency factfinding in immigration cases became much more
deferential. In INS v. Elias-Zacarias, 502 U.S. 478 (1992), the
Supreme Court explained that to reverse a factual finding by
the BIA requires “that the evidence not only supports that
conclusion, but compels it . . . .” Id. at 481 n.1. And through
legislation in 1996, Congress conformed the statutory text to
that standard, such that courts had to treat findings of fact in an
immigration proceeding as “conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.”
14
Illegal Immigration Reform and Immigrant Responsibility Act
of 1996, Pub. L. No. 104-208, sec. 306(a)(2), § 242(b)(4)(B),
100 Stat. 3009, 3009-608 (codified at 8 U.S.C.
§ 1252(b)(4)(B)); see also Sevoian v. Ashcroft, 290 F.3d 166,
171 (3d Cir. 2002) (“The Reform and Responsibility Act
codifies the language the Supreme Court used in Elias-
Zacarias to describe the substantial evidence standard in
immigration cases.”).
More recent decisions by the Supreme Court confirm that
an agency’s factual findings in immigration proceedings are
reviewed, not under the traditional substantial evidence
standard, but under the highly deferential form of that standard
articulated by Elias-Zacarias and codified in 1996. Compare
Garland v. Ming Dai, 141 S. Ct. 1669, 1677 (2021) (quoting
8 U.S.C. § 1252(b)(4)(B)), and Nasrallah v. Barr, 140 S. Ct.
1683, 1692 (2020) (same), with Biestek v. Berryhill, 139 S. Ct.
1148, 1154 (2019) (applying the traditional substantial
evidence standard in a social security case without the modifier
‘highly deferential’).5 Whether the ‘highly deferential’
modifier serves purely as a description or as a new term of art
is immaterial: in reviewing agency factfinding in an
immigration proceeding, a court examines the whole record,
5
As further corroboration, two recent dissenting opinions,
which reflect the views of a combined six Justices, explain –
not as a disputed point of law but as an established principle –
that the standard of judicial review for agency factfinding in
immigration cases is more deferential than the traditional
substantial evidence standard. See Patel v. Garland, 142 S. Ct.
1614, 1630 (2022) (Gorsuch, J., dissenting) (explaining that
normally federal courts review agency factual findings under
the substantial evidence standard but that “[a] similar, if surely
more deferential, principle finds voice in the INA” (emphasis
added)); Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1076
(2020) (Thomas, J., dissenting) (describing the INA’s standard
for judicial review of agency factfinding as an “extremely
deferential standard”).
15
considers the weight of facts that detract from the agency’s
conclusion, and sets aside the agency’s findings only if a
“reasonable adjudicator would be compelled to conclude to the
contrary.” 8 U.S.C. § 1252(b)(4)(B). To be so compelled, an
alternative finding cannot be simply as persuasive as the
agency’s, or even marginally better – it must be so superior
relative to the agency’s finding that no “reasonable adjudicator
could have found as the agency did” over the alternative. Ming
Dai, 141 S. Ct. at 1678. Also, under this highly deferential
standard, an agency’s failure to consider detracting evidence
does not, by itself, justify setting aside a factual finding.
Rather, for an agency’s finding of fact to be set aside on this
basis, the neglected detracting evidence, if considered, would
have to compel a reasonable adjudicator to reach a contrary
conclusion. See Nasrallah, 140 S. Ct. at 1692; Elias-Zacarias,
502 U.S. at 481.
2. The BIA’s Factual Finding of a Valid
Waiver Must Be Upheld.
Under highly deferential substantial evidence review,
Mendoza’s first petition can succeed only if the administrative
record compels the conclusion that he did not knowingly,
voluntarily, and intelligently waive his right to an
administrative appeal. See 8 U.S.C. § 1252(b)(4)(B). He does
not make that showing.
The record does not compel the conclusion that Mendoza
unknowingly waived his right to an administrative appeal. The
Immigration Judge presented Mendoza with his options: he
could exercise his “right to appeal to the higher court, the
Board of Immigration Appeals, or [he could] waive [his] right
to appeal.” Merits Hr’g Tr. at 58:7–8 (App. 174). The
Immigration Judge then explained that if Mendoza waived that
right, he could not “later change [his] mind and say [that he]
want[ed] to appeal the decision.” Id. at 61:2–3 (App. 177); see
Rodriguez-Diaz, 22 I. & N. Dec. at 1323 (holding that “in
cases involving unrepresented aliens,” the Immigration Judge
16
should typically provide the alien a “more detailed
explanation[]” of the right to appeal). Following that
explanation, Mendoza recognized that he had a decision to
make, took a break, and ultimately waived the right to appeal.
Without more, the record does not compel the conclusion that
Mendoza misunderstood the choice before him. Cf. Biwot v.
Gonzales, 403 F.3d 1094, 1098 (9th Cir. 2005) (concluding
that an alien’s waiver of an administrative appeal was invalid
because the alien “was under the misapprehension that he had
no choice but to waive his appeal”).
Although the Immigration Judge explained the right to an
administrative appeal to Mendoza, she did not identify every
downstream consequence of the waiver, such as the loss of a
pathway to judicial review. See 8 U.S.C. § 1252(d)(1) (“A
court may review a final order of removal only if . . . the alien
has exhausted all administrative remedies available to the alien
as of right . . . .”). But complete knowledge of every potential
consequence of a contemplated action is not required for a
knowing waiver. See United States v. Khattak, 273 F.3d 557,
561 (3d Cir. 2001) (“Waivers of the legal consequences of
unknown future events are commonplace. . . . [T]he
prospective nature of waivers has never been thought to place
[them] off limits or to render a defendant’s act unknowing.”
(internal citation and quotation marks omitted)).6 And here,
the Immigration Judge, in informing Mendoza of his right to
an administrative appeal, explained the immediate
consequences of his decision, which Mendoza apparently
understood when he said he accepted those consequences.
Thus, a reasonable adjudicator would not be compelled to
conclude that the absence of a preview of the more remote
6
Consistent with that principle, the BIA fashioned a model
notice that explains the most immediate consequences
associated with the decision to waive an administrative appeal.
In re Rodriguez-Diaz, 22 I. & N. Dec. at 1323 n.2 (setting forth
a model waiver notice that does not mention that an
administrative appeal is needed to preserve judicial review).
17
consequences associated with waiving an administrative
appeal rendered Mendoza’s decision unknowing.
The administrative record similarly does not compel the
conclusion that Mendoza’s waiver was involuntary. After
explaining the appellate options to Mendoza, the Immigration
Judge offered to preserve Mendoza’s right to appeal if he were
uncertain about waiving. The Immigration Judge also allowed
a brief recess for Mendoza to discuss the matter with his
girlfriend. When the proceeding resumed, Mendoza stated that
he wanted to waive the appeal. Upon further questioning by
the Immigration Judge, Mendoza confirmed his intention to
waive his right to appeal.
Despite those facts, Mendoza asserts that his waiver was
coerced. He argues that the Immigration Judge’s forecast that
he might remain in detention for up to year during the
pendency of appeal pressured him to waive his appeal. But it
would require much more than an Immigration Judge’s
predictive assessment of the timeline for an administrative
appeal to compel the conclusion that Mendoza’s waiver was
coerced – particularly since such an informative assessment
could have augmented his knowledge and intelligence in
deciding whether to waive the right. See, e.g., Borbot v.
Warden Hudson Cnty. Corr. Facility, 906 F.3d 274, 278 (3d
Cir. 2018) (discussing not atypical instances where an alien is
detained pending removal for over a year). Because Mendoza
offers nothing more from the administrative record in support
of his coercion contention, he cannot overcome the BIA’s
finding that he voluntarily waived his right to an administrative
appeal.
Similarly, the administrative record does not compel the
conclusion that Mendoza’s waiver was unintelligent. The
decision to waive an administrative appeal for a detained alien
involves deciding between two imperfect options: release from
detention accompanied by a return to an allegedly hostile
homeland, or continued detention during the pendency of
18
further administrative review and potentially judicial review
too. But from the administrative record, Mendoza understood
the limited options before him, and after a break to consider
them, he decided to “take the deportation” despite his stated
fear of returning to Honduras because he did not “want to be
incarcerated for any longer.” Merits Hr’g Tr. at 60:22–24
(App. 176). That was not an unintelligent choice.
In concluding that Mendoza’s waiver was intelligent,
however, the BIA did not consider the fact that he was
representing himself at the time. It may be that if Mendoza
were represented, then his attorney could have provided an
assessment of his case, so that he could have made a more
informed decision about whether to waive administrative
appeal. But the requirement for an intelligent waiver does not
demand that the waiver be premised on the best possible
rationale. Thus, although an assessment from counsel on the
likelihood of success on appeal is potentially beneficial, its
absence does not transform an otherwise intelligent waiver into
an unreasoned decision. Indeed, the decision to waive appeal
is traditionally reserved for the party – not counsel. See McCoy
v. Louisiana, 138 S. Ct. 1500, 1508 (2018) (citing Jones v.
Barnes, 463 U.S. 745, 751 (1983)). Still, even if Mendoza’s
pro se status at the time of his waiver did detract somewhat
from his ability to assess all the possible consequences entailed
in waiving administrative appeal, the BIA’s failure to consider
that fact would not alter the outcome on highly deferential
substantial evidence review: accounting for his lack of counsel
at the time of his waiver does not compel the conclusion that
his waiver was unintelligent.
For these reasons, Mendoza’s first petition will be denied.
B. MENDOZA’S SECOND PETITION
After the dismissal of his administrative appeal, Mendoza
filed a motion to reconsider that order with the BIA. He
advanced several arguments, including three that attacked the
19
validity of his waiver. He claimed that his waiver was invalid
because (i) he was abandoned by counsel; (ii) he received
ineffective assistance of counsel; and (iii) he was not notified
by the Immigration Judge of his right to counsel. The BIA
denied that motion, and through his second petition Mendoza
now presses those three arguments.
1. The Scope and Standard of Review for
Motions to Reconsider Removal Orders
Motions to reconsider BIA decisions contest “the
correctness of the original decision based on the previous
factual record.” Matter of O-S-G-, 24 I. & N. Dec. 56, 57 (BIA
2006); 8 C.F.R. § 1003.2(b)(1) (explaining that a motion to
reconsider focuses on “errors of fact or law in the prior Board
decision”); 8 U.S.C. § 1229a(c)(6)(C) (same). Accordingly,
motions to reconsider cannot raise arguments dependent on
supplemental facts; rather they must be based on the
preexisting administrative record. See In re O-S-G-, 24 I. & N.
Dec. at 57 (“A motion to reconsider contests the correctness of
the original decision based on the previous factual
record . . . .”). Similarly, a motion to reconsider may generally
dispute only the legal propositions previously before the BIA
– either those raised in the alien’s initial appeal or those relied
upon by the BIA sua sponte in resolving the appeal. See id. at
58; see also Lin v. Att’y Gen., 543 F.3d 114, 126 (3d Cir. 2008).
Although a motion to reconsider does not allow a challenge to
a removal order based on evidence not contained in the original
administrative record, such a challenge may be brought
through a motion to reopen, which Mendoza did not file. See
In re O-S-G-, 24 I. & N. Dec. at 57–58; 8 C.F.R.
§ 1003.2(c)(1); compare 8 U.S.C. § 1229a(c)(6) (setting forth
procedural requirements for a motion to reconsider), with id.
§ 1229a(c)(7) (setting forth procedural requirements for a
motion to reopen).
A court reviews an order by the BIA denying a motion to
reconsider for an abuse of discretion. See Castro v. Att’y Gen.,
20
671 F.3d 356, 364 (3d Cir. 2012) (citing Pllumi v. Att’y Gen.,
642 F.3d 155, 158 (3d Cir. 2011)); 8 C.F.R. § 1003.2(a) (“The
decision to grant or deny a motion to . . . reconsider is within
the discretion of the Board, subject to the restrictions of this
section.”). To constitute an abuse of discretion, a BIA order
must be “arbitrary, irrational, or contrary to law.” Borges v.
Gonzales, 402 F.3d 398, 404 (3d Cir. 2005) (internal citation
omitted). The BIA does not abuse its discretion by denying a
motion for reconsideration predicated on either new evidence
or legal arguments that could have been raised earlier because
both of those grounds exceed the permissible limits for such a
motion. Also, in the absence of record evidence compelling a
contrary conclusion, the BIA does not abuse its discretion in
declining to revise its prior factual findings.
2. The BIA Did Not Abuse Its Discretion in
Denying Mendoza’s Motion to
Reconsider.
The BIA dismissed Mendoza’s administrative appeal
because it found that he validly waived the appeal. Due to the
narrow scope of motions to reconsider, Mendoza’s motion
could challenge only that factual finding and only based on the
preexisting administrative record. With those limitations, the
BIA denied Mendoza’s motion to reconsider. As explained
below, the BIA did not abuse its discretion in making that
determination.
a. The BIA Did Not Abuse Its Discretion
in Rejecting Mendoza’s Argument
that His Waiver Was Invalid due to
Abandonment by Counsel.
Mendoza contends that because his former counsel
abandoned him, his waiver of an administrative appeal was
invalid. But the preexisting administrative record does not
compel the conclusions either that Mendoza’s counsel
21
abandoned him or that Mendoza’s waiver was invalid due to
his pro se status at the time.
To support his claim of abandonment by counsel, Mendoza
relied on extra-record factual allegations. He asserted that he
did not know of his counsel’s withdrawal motion; that he did
not consent to the withdrawal; and that he did not wish to
proceed pro se.7 But a motion to reconsider before the BIA is
not an opportunity to supplement the administrative record
with additional evidence. See 8 U.S.C. § 1229a(c)(7)(B);
8 C.F.R. § 1003.2(c)(1). If Mendoza wished to contest the
validity of his waiver of an administrative appeal with extra-
record evidence, then he should have filed a motion to reopen
– a common practice for challenging counsel’s performance in
an immigration proceeding. See, e.g., Contreras v. Att’y Gen.,
665 F.3d 578, 583 (3d Cir. 2012); Fadiga v. Att’y Gen.,
488 F.3d 142, 144 (3d Cir. 2007); Zheng v. Gonzales, 422 F.3d
98, 102 (3d Cir. 2005); Xu Yong Lu v. Ashcroft, 259 F.3d 127,
129 (3d Cir. 2001).8 Because the BIA may not consider those
extra-record factual allegations on a motion to reconsider, it
was not an abuse of discretion for the BIA to reject Mendoza’s
abandonment-of-counsel argument.
Even if the preexisting record did establish that Mendoza
was abandoned by counsel, that would not salvage his
7
Mendoza also alleged that despite repeatedly calling the
attorney’s office, he had not spoken to the attorney since one
call before the bond hearing, and the only response he received
was from a secretary who informed him that the representation
had ended.
8
Mendoza’s reconsideration motion, which was filed by his
pro bono counsel, cannot be construed as a motion to reopen
because it contained only unsworn allegations and not the type
of evidence required to justify reopening the case. See 8 C.F.R.
§ 1003.2(c)(1) (providing that a motion to reopen “shall be
supported by affidavits or other evidentiary material”).
22
argument. The right to seek administrative appeal of the
Immigration Judge’s decision was his and his alone, cf.
McCoy, 138 S. Ct. at 1508, and as explained above, the record
does not compel the conclusion that his waiver was
unknowing, involuntary, or unintelligent. Thus, it was not an
abuse of discretion for the BIA to reject this basis for
Mendoza’s motion for reconsideration.
b. The BIA Did Not Abuse Its Discretion
in Rejecting Mendoza’s Claim that
His Prior Counsel’s Ineffective
Assistance Invalidated His Waiver.
Mendoza next argues that his waiver of an administrative
appeal was invalid due to his former counsel’s deficient
performance at the bond hearing. This contention depends on
a multi-step causal chain, starting with the claim that
Mendoza’s former counsel’s incomplete knowledge of
Mendoza’s criminal history caused the Immigration Judge to
deny his release on bond. From there, Mendoza submits that
because he valued release more than an administrative appeal,
he waived his right to an administrative appeal. He then argues
that he would not have waived administrative appeal had he
been released on bond.
Mendoza has a problem with the first inference in the chain.
The record does not compel the conclusion that his former
counsel’s performance at the bond hearing caused the denial of
his motion for release. After it became apparent that
Mendoza’s attorney did not know the full extent of Mendoza’s
criminal history, the Immigration Judge questioned Mendoza
on that topic. Based on Mendoza’s responses – the truth of
which has never been disputed – the Immigration Judge denied
bond. In light of the prominence of Mendoza’s own testimony
about his criminal history, the record does not compel the
conclusion that his former counsel’s incomplete knowledge of
his criminal history caused the denial of the bond motion. But
even if his former counsel’s performance foreclosed the option
23
of appealing while released on bond, the choice before
Mendoza – appealing while remaining detained or accepting
the ruling and returning to Honduras – was still not coercive or
confounding and thus did not negate the validity of his waiver.
c. The Entire Immigration Proceeding
Was Not Fundamentally Unfair.
As a last resort, Mendoza challenges the fundamental
fairness of the immigration proceedings. In contending that the
Immigration Judge violated due process by not specifically
informing him of his right to representation, Mendoza relies
principally on Leslie v. Attorney General, 611 F.3d 171 (3d
Cir. 2010). In that case, an alien appeared without counsel at
his first hearing in Immigration Court and was not notified by
the Immigration Judge of the availability of pro bono counsel
– as required by regulation. Id. at 174–75, 182; see 8 C.F.R.
§ 1240.10(a)(1)–(3). The alien was ordered removed, and his
administrative appeal was denied by the BIA, all without him
ever having representation. See Leslie, 611 F.3d at 174. In
reviewing the alien’s petition seeking review of that order, this
Court held that, under those circumstances, the proceeding was
fundamentally unfair regardless of whether the absence of
counsel prejudiced the alien. Id.At the outset, the facts of this case are distinguishable from
Leslie. The record indicates that Mendoza received a list of
pro bono counsel when he was served with the Notice to
Appear. And he did not appear unrepresented at his first
hearing; to the contrary, the Immigration Judge asked Mendoza
whether he wanted to be represented by the attorney who
appeared, and Mendoza responded that he did. That attorney
also filed an application for relief from removal, moved for
Mendoza’s release on bond, and represented Mendoza at the
bond hearing. The Immigration Judge permitted the attorney’s
withdrawal only after questioning the attorney and, from his
answers, determining that Mendoza wished to proceed pro se.
Thus, the two facts that influenced the holding in Leslie – the
24
Immigration Judge’s violation of a regulation requiring notice
of pro bono counsel and the lack of initial representation – are
not present here.
But even if Leslie were extended to this situation, it would
not alter the outcome. Leslie makes voidable removal orders
in cases in which the Immigration Judge does not inform the
alien of the availability of pro bono counsel and the alien
proceeds pro se. But Leslie does not automatically void all
orders from such an immigration proceeding.9 Rather, to raise
a Leslie due process challenge, an alien must timely appeal the
order to the BIA – as occurred in Leslie. See Leslie, 611 F.3d
at 174; see also 8 U.S.C. § 1252(d)(1); Castro, 671 F.3d at 365
(“A petitioner’s failure to exhaust an issue by presenting it to
the BIA deprives us of jurisdiction to consider that issue.”).
And here, Mendoza waived his right to an administrative
appeal. Accordingly, even if Leslie were expanded to reach
these facts, Mendoza could not litigate that issue now.
CONCLUSION
For the foregoing reasons, we will deny the consolidated
petitions for review.
9
A contrary conclusion would undercut Leslie’s core holding
by unfairly prejudicing aliens who receive mixed relief in
Immigration Court. For example, a pro se alien who did not
receive a list of pro bono legal service providers, and who was
denied asylum but was granted CAT deferral may wish to
administratively appeal the denial of asylum. But if the lack of
notice of pro bono legal services would automatically void the
proceeding, then the alien could not appeal the denial of
asylum while retaining CAT deferral. Instead, the alien would
have to choose between appealing (which would void the entire
order including his CAT deferral) and not appealing (which
would require forgoing seeking asylum).
25