Ying Ying Chen v. Michael B. Mukasey , 256 F. App'x 19 ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-3716
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Ying Ying Chen, *
*
Petitioner, *
* Petition for Review of a
v. * Final Decision of the Board
* of Immigration Appeals.
Michael B. Mukasey, Attorney General *
of the United States, * [UNPUBLISHED]
*
Respondent. *
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Submitted: November 12, 2007
Filed: November 27, 2007
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Before RILEY, BOWMAN, and SMITH, Circuit Judges.
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PER CURIAM.
Ying Ying Chen, a native of Burma, petitions for review of an order of removal
by the Board of Immigration Appeals (BIA). After applying for asylum, Chen, before
the immigration judge (IJ), withdrew her application and waived her right to appeal
in exchange for the maximum amount of time for voluntary departure. Chen filed an
appeal with the BIA, claiming the withdrawal of her application was not a knowing
and willful one because of problems with her interpreter. The BIA determined it
lacked jurisdiction because Chen had waived her right to appeal. We hold that we lack
jurisdiction. Therefore, we deny Chen's petition for review.
Chen, a native of Burma and a citizen of China, entered the United States on
August 13, 2001, as a non-immigrant visitor. On July 3, 2002, Chen applied for
asylum and/or withholding of removal and protection under the Convention Against
Torture (CAT). Chen appeared for a hearing before an Asylum Officer on November
17, 2003, and Chen's petition was administratively denied and referred to the IJ.
Because Chen remained in the United States beyond the authorized period, a Notice
to Appear was issued on May 1, 2004, regarding removal pursuant to section
237(a)(1)(B) of the Immigration and Naturalization Act, 8 U.S.C. § 1227(a)(1)(B).
On June 4, 2004, Chen appeared before the IJ for an initial hearing. During this
hearing, Chen, through counsel, conceded removability and waived her right to an
interpreter. The IJ set Chen's final hearing for June 15, 2005.
At the June 15, 2005 hearing, a Burmese translator was present for Chen.
During the hearing, the IJ granted a recess so that Chen's family could discuss whether
any family members had or would file a visa petition on Chen's behalf. After the
recess, Chen's counsel informed the IJ that Chen was withdrawing her application for
asylum and withholding of removal and protection under the CAT. Chen requested
the maximum possible time for voluntary departure, and the IJ granted that request.
The IJ asked Chen if she understood what the attorneys were proposing. Chen
stated that she did. When asked by the IJ if she understood that she was giving up her
asylum, withholding, and relief under the CAT applications, Chen stated she did
understand. Chen's counsel was given permission to question Chen, and counsel asked
Chen if she made her decision voluntarily and intelligently. Chen stated "yes, sir." The
parties agreed that the application would be withdrawn with prejudice. The IJ ordered
that if Chen did not depart by the expiration of the 120-day period, she was to be
removed to China, or in the alternative, Burma. The IJ then asked the parties if they
accepted this decision and waived appeal. Chen's counsel responded "yes, your
honor."
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Despite her appeal waiver, Chen appealed the IJ's order to the BIA on June 28,
2005. Chen argued that the waiver of her application was not knowing and voluntary.
Chen contends that during the June 15, 2005 hearing, her lawyer told her that she had
to leave the country and that when she asked her interpreter what was happening, the
interpreter told her that she could not talk in the courtroom. Chen claimed that she
only found out later that counsel had volunteered her departure. She also argued that
the IJ should have questioned her directly about the voluntariness of her waiver of her
application and her right to appeal.
In a per curiam decision issued September 28, 2006, the BIA dismissed the
appeal for lack of jurisdiction based on Chen's waiver. The BIA's record review
concluded that Chen waived the appeal and that Chen knowingly and intelligently
withdrew her asylum application.
Chen petitions for review, arguing that the BIA erred in finding that she
knowingly and intelligently volunteered to leave the country and that she waived her
right to appeal. The IJ's and BIA's findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary. 8 U.S.C. §
1252(b)(4)(B); see also Samedov v. Gonzales, 422 F.3d 704, 706–07 (8th Cir. 2005).
We may only decide the petition on the administrative record. 8 U.S.C. §
1252(b)(4)(A).
The record reflects that Chen waived her right to appeal. The IJ's oral decision
contains Chen's waiver of appeal, and the transcript from the June 15, 2005 hearing
shows that Chen explicitly waived appeal through counsel. Nothing in the record
supports Chen's claim that she did not knowingly and intelligently withdraw her
asylum application and waive her right to appeal. Chen was represented by counsel
during the hearings below, and she had a Burmese translator who was sworn in. On
the record, Chen's own attorney asked her if she knowingly and voluntarily
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understood the rights she was waiving, and she responded in the affirmative. See
Theodoropoulos v. INS, 358 F.3d 162, 169 (2d Cir.), cert. denied, 543 U.S. 823 (2004)
(concluding an alien had waived the right to appeal to the BIA by stating the alien did
not want to appeal). The BIA's finding that Chen waived her appeal is conclusive
because there is no evidence in the record that could compel a reasonable adjudicator
to conclude to the contrary.
Accordingly, we deny Chen's petition for review.
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