Sadou Bah v. Alberto Gonzales , 457 F.3d 838 ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-2734
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Sadou Bah, *
*
Petitioner, *
* Petition for Review of
v. * an Order of the Board
* of Immigration Appeals.
Alberto Gonzales, Attorney General *
of the United States of America, * [PUBLISHED]
*
Respondent. *
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Submitted: August 4, 2006
Filed: August 9, 2006
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Before MURPHY, BYE, and MELLOY, Circuit Judges.
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PER CURIAM.
Liberian citizen Sadou Bah petitions for review of an order of the Board of
Immigration Appeals (BIA) finding lack of jurisdiction to entertain Bah’s appeal of
an Immigration Judge’s (IJ’s) denial of his motion to reopen removal proceedings.
The BIA erroneously found that Bah had failed to argue, in his brief to the BIA, that
his appeal waiver was not knowing and intelligent. We thus remand the case to the
BIA for it to determine in the first instance the validity of Bah’s waiver of his right to
administrative appeal. See United States v. Rodriguez, 420 F.3d 831, 834 (8th Cir.
2005) (where waivers of right to appeal were not considered or intelligent, alien was
deprived of judicial review of deportation proceeding); Palavra v. INS, 287 F.3d 690,
694 (8th Cir. 2002) (where agency failed to perform its fact-finding function, case was
not ripe for appellate review); cf. El-Sheikh v. Ashcroft, 388 F.3d 643, 648 (8th Cir.
2004) (lacking BIA finding as to asylum applicant’s credibility and BIA analysis of
what material facts central to his claim of past persecution should have been
reasonably corroborated, court of appeals had no way of reviewing BIA’s actual
reasoning).
Accordingly, we grant Bah’s petition for review, and we remand to the BIA for
a determination as to the validity of Bah’s appeal waiver.
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