                                                                 FILED
                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS         Tenth Circuit

                                   TENTH CIRCUIT                              June 6, 2012

                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court

 PABLO FIDELINO ARRIAGA-
 ALVARADO,

        Petitioner,

 v.                                                           No. 11-9582
                                                          (Petition for Review)
 ERIC H. HOLDER, JR., United States
 Attorney General,

        Respondent.


                              ORDER AND JUDGMENT*


Before LUCERO, O’BRIEN, and MATHESON, Circuit Judges.


       Pablo Fidelino Arriaga-Alvarado petitions pro se for review of a final order of

removal issued by the Board of Immigration Appeals (“BIA”). Mr. Arriaga-Alvarado


       *After examining Petitioner’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed.
R. App. P. 32.1 and 10th Cir. R. 32.1.
challenges the BIA’s conclusion that it lacked jurisdiction to consider his appeal because

he had knowingly and voluntarily waived his right to appeal. Exercising jurisdiction

pursuant to 8 U.S.C. § 1252(a)(1), (2)(D), we deny Mr. Arriaga-Alvarado’s petition for

review.

                                   I.   BACKGROUND

       In 1995, Mr. Arriaga-Alvarado, a native and citizen of Guatemala, entered the

United States illegally. On April 13, 2006, the Department of Homeland Security

instituted removal proceedings against Mr. Arriaga-Alvarado for being an alien present in

the United States without inspection. See 8 U.S.C. § 1182(a)(6)(A)(i). On June 14, 2006,

Mr. Arriaga-Alvarado appeared in Immigration Court and conceded his removability.

Mr. Arriaga-Alvarado requested a continuance to prepare any applications for relief and

requested a Spanish language interpreter. Both of his requests were granted.

       On August 3, 2011, Mr. Arriaga-Alvarado appeared in Immigration Court with

counsel. During the hearing, Mr. Arriaga-Alvarado’s counsel requested that the court

grant Mr. Arriaga-Alvarado a 120-day pre-conclusion voluntary departure. An

immigration judge (“IJ”) may grant a 120-day voluntary departure only if the individual

meets certain conditions, including waiving appeal of all issues. See 8 C.F.R.

§ 1240.26(b)(1)(i); see also 8 U.S.C. § 1229c(a)(1). Thus, before granting Mr. Arriaga-

Alvarado’s request, the IJ stated: “[Mr. Arriaga-Alvarado], I just want you to understand,

if you’re asking for voluntary departure . . . for the full 120 days, that means you’re not

going to appeal this case to a higher court. Do you understand that? This is it. Do you
                                             -2-
understand?” ROA, at 36. Mr. Arriaga-Alvarado responded, “Yeah.” Id. The IJ also

ensured that Mr. Arriaga-Alvarado’s counsel understood that a grant of a 120-day

voluntary departure was a final order that could not be appealed. Id. After these

colloquies, the IJ entered a final decision granting Mr. Arriaga-Alvarado a pre-conclusion

voluntary departure for 120 days.

       Mr. Arriaga-Alvarado timely filed a pro se petition for review with the BIA.

Citing Mr. Arriaga-Alvarado’s appeal waiver, the BIA dismissed his petition for lack of

jurisdiction. Mr. Arriaga-Alvarado now seeks review by this court.

                                     II. DISCUSSION

       “The BIA lacks jurisdiction to review an [IJ’s] decision if an alien has knowingly

and [voluntarily] waived his right to appeal.” Kohwarien v. Holder, 635 F.3d 174, 179

(5th Cir. 2011); see also In re Rodriguez-Diaz, 22 I. & N. Dec. 1320, 1322 (B.I.A. 2000).

“The finding of a knowing and [voluntary] waiver is inevitably a fact-specific inquiry.”

Kohwarien, 635 F.3d at 179 (quotations omitted).

       In his petition for review, Mr. Arriaga-Alvarado contends that he did not

knowingly and voluntarily waive his right to appeal the IJ’s order and that the BIA

therefore erred in concluding it lacked jurisdiction to consider his petition.1 We review


       1
         In his petition for review, Mr. Arriaga-Alvarado also argues that his counsel was
ineffective. Mr. Arriaga-Alvarado asserted an ineffective assistance of counsel claim in
his petition to the BIA, but the BIA concluded that only the IJ had jurisdiction to consider
such a claim. In his petition for review, Mr. Arriaga-Alvarado has not challenged the
BIA’s jurisdictional conclusion regarding his ineffective assistance of counsel claim. He
                                                                              Continued . . .
                                             -3-
the BIA’s legal determinations de novo and its “factual findings for substantial

evidence.” Witjaksono v. Holder, 573 F.3d 968, 977 (10th Cir. 2009). Under the

substantial evidence standard, “factual findings are conclusive unless any reasonable

adjudicator would be compelled to conclude to the contrary.” Id. (quotations omitted);

see also 8 U.S.C. § 1252(b)(4)(B).

       During the August 3, 2011 hearing, the IJ explained to Mr. Arriaga-Alvarado that

he was statutorily required to waive his right to appeal before he could receive a 120-day

voluntary departure. Mr. Arriaga-Alvarado stated that he understood that requirement.

This colloquy provides substantial evidence to support the BIA’s finding that Mr.

Arriaga-Alvarado knowingly and voluntarily waived his right to appeal the IJ’s order.

Cf. Blackledge v. Allison, 431 U.S. 63, 74 (1977) (“Solemn declarations in open court

carry a strong presumption of verity.”). And, after reviewing Mr. Arriaga-Alvarado’s

petition for review and the record in its entirety, we conclude that Mr. Arriaga-Alvarado

has failed to demonstrate any evidence that would compel a reasonable adjudicator to

disagree with the BIA’s finding. Because Mr. Arriaga-Alvarado knowingly and

voluntarily waived his right to appeal the IJ’s order, the BIA correctly determined that it

lacked jurisdiction to consider his petition. See, e.g., Narine v. Holder, 559 F.3d 246, 248



_______________
 Cont.
has therefore waived any challenge to the BIA’s conclusion. See, e.g., United States v.
Redcorn, 528 F.3d 727, 737 n.4 (10th Cir. 2008) (noting that issues not raised in an
opening brief are deemed abandoned or waived).

                                             -4-
n.2 (4th Cir. 2009) (“Once an alien waives his right to appeal, the BIA no longer has

jurisdiction to review a decision of an IJ.”).

                                    III. CONCLUSION

       For these reasons, we deny Mr. Arriaga-Alvarado’s petition for review. We also

deny Mr. Arriaga-Alvarado’s request to proceed in forma pauperis.

                                            ENTERED FOR THE COURT



                                            Scott M. Matheson, Jr.
                                            Circuit Judge




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