Nervy Espana Orellana v. Jefferson Sessions

FILED NOT FOR PUBLICATION JUN 04 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT NERVY ROBERTO ESPANA No. 14-73489 ORELLANA, Agency No. A040-417-826 Petitioner, v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted April 10, 2018 San Francisco, California Before: THOMAS, Chief Judge, FERNANDEZ, Circuit Judge, and EZRA,** District Judge. Nervy Roberto Espana Orellana, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable David A. Ezra, United States District Judge for the District of Hawaii, sitting by designation. appeal from an Immigration Judge’s (“IJ”) decision finding him removable and ordering him removed. We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition. Because the parties are familiar with the history of the case, we need not recount it here. I The BIA had jurisdiction over Orellana’s appeal, because Orellana’s waiver of his appeal rights was invalid. Orellana exhausted this argument before the BIA. Thus, the BIA’s disclaimer of jurisdiction over Orellana’s appeal was in error. A Orellana’s waiver of his appeal rights was invalid, because the waiver was not voluntary, knowing, or intelligent. In his second hearing before the IJ, Orellana and the government entered what was in effect a stipulated removal order. Pursuant to the Immigration and Nationality Act’s implementing regulations, a stipulated removal order must include, inter alia, a waiver of appeal of the removal order, 8 C.F.R. § 1003.25(b)(8), and a “statement that the alien understands the consequences of the stipulated request and that the alien enters the request voluntarily, knowingly, and intelligently,” 8 C.F.R. § 1003.25(b)(6). The record does not support a finding that Orellana’s waiver of his appeal rights was knowing and intelligent. The IJ never advised Orellana that he had the 2 right to appeal. He only asked if Orellana accepted the removal order as “final,” and Orellana said that he did. An appeal waiver is invalid in such a situation. See Matter of Rodriguez-Diaz, 22 I&N Dec. 1320, 1323 (BIA 2000) (“The simple inquiry at the end of the hearing, focusing on acceptance of a decision as ‘final,’ was not adequate to ensure that the unrepresented alien understood the import of the Immigration Judge’s question.”); see also United States v. Pallares-Galan, 359 F.3d 1088, 1097 (9th Cir. 2004) (holding that an appeal waiver was not “considered and intelligent” when the IJ gave a pro se respondent only a “brief explanation” of right to appeal). Because Orellana’s appeal waiver was not voluntary, knowing, and intelligent, the waiver was invalid. B The government argues that Orellana failed to exhaust the claim that his waiver was invalid. We are generally barred, for lack of subject-matter jurisdiction, from considering claims that have not been administratively ...

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