Silva v. Keisler

SUMMARY ORDER

Milton Pereira Da Silva, a native and citizen of Brazil, seeks review of an October 27, 2005 order of the BIA dismissing for lack of jurisdiction an appeal of the September 7, 2004 decision of Immigration Judge (“IJ”) Michael W. Straus, which granted voluntary departure. In re Milton Pereira Da Silva, No. A98 045 050 (B.I.A. Oct. 27, 2005), aff'g No. A98 045 050 (Immig. Ct. Hartford Sept. 7, 2004). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

We are without jurisdiction to review the agency’s grant of voluntary departure. 8 U.S.C. § 1252(a)(2)(B)®. Although we retain jurisdiction, under 8 U.S.C. § 1252(a)(2)(D), to review constitutional claims and questions of law, petitioner’s “talismanic invocation of the language of ‘due process’ ” alone is insufficient to create jurisdiction over his petition.² Saloum v. USCIS, 437 F.3d 238, 243 (2d Cir.2006). Moreover, we lack jurisdiction to review the instant petition because petitioner does not challenge the BIA’s finding that he knowingly and intelligently waived his right to appeal. See Theodoropoulos v. INS, 358 F.3d 162, 168-74 (2d Cir.2004) (holding that an alien’s express waiver of his right to appeal to the BIA deprives this Court of jurisdiction to consider the alien’s subsequent petition for review). Accordingly, we are without jurisdiction to review petitioner’s claims, and his appeal must be dismissed.

For the foregoing reasons, the petition for review is DISMISSED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(d)(1).

2 . We note that the record reflects that petitioner, represented by counsel, was provided a full and fair hearing.