Doris Castro Vargas v. Jefferson B. Sessions, III

United States Court of Appeals
For the Eighth Circuit
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Nos. 16-1299/16-2128
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Doris Elizabeth Castro-Vargas
lllllllllllllllllllllPetitioner
v.
Jefferson B. Sessions, III,1 Attorney General of the United States
lllllllllllllllllllllRespondent
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Petitions for Review of Orders of the
Board of Immigration Appeals
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Submitted: March 24, 2017
Filed: April 4, 2017
[Unpublished]
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Before RILEY, ARNOLD, and COLLOTON, Circuit Judges.
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PER CURIAM.
1
Jefferson B. Sessions, III has been appointed to serve as Attorney General of
the United States, and is substituted as respondent pursuant to Federal Rule of
Appellate Procedure 43(c).
Doris Castro-Vargas, a citizen of El Salvador, petitions for review of two
decisions of the Board of Immigration Appeals (BIA). We deny the petitions.2
At her counseled hearing before an immigration judge (IJ), Castro-Vargas
withdrew her application for immigration relief, indicating that, pursuant to an
agreement with the Department of Homeland Security (DHS), she would instead
accept pre-conclusion voluntary departure and waive appeal. After carefully
questioning Castro-Vargas and her counsel regarding her decision, the IJ allowed her
to withdraw her application and granted her pre-conclusion voluntary departure.
Castro-Vargas failed to depart, and instead filed a pro se appeal with the BIA,
arguing, as relevant, that her appeal waiver was not knowing and voluntary. The BIA
found the appeal waiver was valid and dismissed her appeal; her petition for review
of this order is the subject of No. 16-1299. The BIA denied Castro-Vargas’s
subsequent motion to reconsider its dismissal; her petition for review of this order is
the subject of No. 16-2128.
In this court, Castro-Vargas argues (1) the BIA engaged in prohibited fact-
finding, and violated its own rules, when it determined the merits of her challenge to
the waiver’s validity, instead of remanding the matter to the IJ; (2) the BIA’s waiver
finding violated her due process right to be meaningfully heard, because the BIA did
2
Because Castro-Vargas raises the constitutional claims that her appeal waiver
was not voluntary and that the BIA’s waiver finding violated her due process right
to be meaningfully heard, we have jurisdiction. See 8 U.S.C. § 1252(a)(2)(D)
(declaring that a review of constitutional claims or questions of law raised in a
petition is not precluded); United States v. Mendoza-Lopez, 481 U.S. 828, 839-40
(1987) (holding, if an appeal waiver is not considered or intelligent, an alien’s
removal proceeding violates due process); Tun v. Gonzales, 485 F.3d 1014, 1025 (8th
Cir. 2007) (stating that Due Process Clause entitles immigrant to a fair removal
hearing where she may “fairly present evidence, offer arguments, and develop the
record”).
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not address her assertions that she was coerced into accepting the waiver by DHS’s
conduct; and (3) her appeal waiver was not knowing and voluntary.
First, the BIA had authority to determine whether the appeal waiver was valid.
See In re Patino, 23 I. & N. Dec. 74, 76 (BIA 2001) (appeal-waiver validity may be
challenged by appeal directly to BIA). Second, Castro-Vargas has not demonstrated
that the BIA violated her due process rights, as the record shows that the BIA
considered and rejected her allegations of coercion. See Lopez v. Heinauer, 332 F.3d
507, 512-13 (8th Cir. 2003) (explaining to establish due process violation, an alien
must demonstrate both fundamental procedural error and resulting prejudice). Third,
the record shows that the BIA was correct in its determination that Castro-Vargas’s
appeal waiver was knowing and voluntary. See Malonga v. Holder, 621 F.3d 757,
764 (8th Cir. 2010) (stating administrative findings of fact are reviewed under
deferential substantial-evidence standard); cf. United States v. Holloway, 128 F.3d
1254, 1256 (8th Cir. 1997) (holding that whether waiver is knowing and intelligent
is a question of fact).
We further conclude the BIA did not abuse its discretion in denying Castro-
Vargas’s motion for reconsideration. See Strato v. Ashcroft, 388 F.3d 651, 654-55
(8th Cir. 2004). The petitions for review are denied.
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