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

                           FOR THE TENTH CIRCUIT                       September 25, 2012

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
DOMINGO HERNANDEZ-LUIS,

             Petitioner,

v.                                                           No. 12-9518
                                                         (Petition for Review)
ERIC H. HOLDER, JR., United States
Attorney General,

             Respondent.


                            ORDER AND JUDGMENT*


Before HARTZ, ANDERSON, and EBEL, Circuit Judges.



      Petitioner Domingo Hernandez-Luis, a native of Mexico, petitions pro se for

review of an order issued by the Board of Immigration Appeals (BIA) dismissing his

appeal for lack of jurisdiction. Exercising jurisdiction pursuant to 8 U.S.C.

§ 1252(a)(1), (2)(D), we deny the petition for review.



*
      After examining the briefs and 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); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
                                 I.     BACKGROUND

      Petitioner entered the United States without inspection in 1987. He was placed

in removal proceedings in 2008, after he came to the attention of the Department of

Homeland Security during his incarceration for traffic violations. On June 8, 2010,

he appeared in Immigration Court, along with his lawyer, for what was scheduled as

a merits hearing on his request for cancellation of removal. But instead of going

forward on his application, petitioner asked that the Immigration Judge (IJ) grant him

voluntary departure. The IJ inquired several times if this was the course of action

that petitioner wanted to pursue, and just as many times, petitioner reiterated that this

was what he wanted. Petitioner then signed an application withdrawing his

application for cancellation of removal with prejudice, which was witnessed by the

IJ.

      An IJ may grant voluntary departure only if the individual meets certain

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

§ 1240.26(b)(1)(i); see also 8 U.S.C. § 1229c(a)(1). To that end, the IJ determined

that petitioner was eligible for voluntary departure and advised him of the

consequences of disobeying the order. The IJ also inquired if “[e]ither party want[s]

to appeal?” Admin. R. at 140. Petitioner asked about “any kind of paper work that I

would need to have checked or something once I cross the border?” Id. The IJ

explained the process and asked again if “[a]ll parties waive appeal?” Id. at 141.

The government agreed, and petitioner’s lawyer said: “Yes, Your Honor.” Id. The


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IJ granted voluntary departure within 120 days, to October 6, 2010, but entered an

alternate order of removal to Mexico in the event that petitioner failed to voluntarily

depart the United States.

       Petitioner timely filed a pro se petition for review with the BIA. He argued

that his lawyer’s ineffective assistance left the IJ “little option but [to] seek

withdrawal of Petitioner’s Application for CANCELLATION with prejudice.” Id.

at 66. The BIA dismissed the petition for lack of jurisdiction on the grounds that

petitioner “has made no argument on appeal that his decision to waive appeal was not

knowing and intelligent.” Id. at 2. The BIA also concluded that “[e]ven if we

considered the ineffective assistance of counsel claim, the strategy of pursuing

voluntary departure over cancellation is not a ground[] for a claim of ineffective

assistance.” Id. at n.1. He now seeks review in this court.

        In his appeal to the BIA, petitioner also argued that he was afraid to return to

Mexico because of changed country conditions. The BIA construed this argument as

a motion to reopen, but denied the motion because petitioner failed “to submit

evidence that is ‘material and was not available and could not have been discovered

or presented at the previous proceeding,’” quoting 8 C.F.R. § 1003.23(b)(4). Admin.

R. at 3. The government argues that petitioner has waived review of the BIA’s denial

of his motion to reopen because he does not address the issue on appeal. We agree.

Although we must liberally construe petitioner’s pro se brief, see Hall v. Bellmon,

935 F.2d 1106, 1110 (10th Cir. 1991), he does nothing more than argue how


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increased drug violence in Mexico would affect his U.S. citizen children should they

return to Mexico with him. But petitioner does not attempt to identify any error in

the BIA’s ruling or explain why it was wrong. Thus, the argument is waived. See

Fed. R. App. P. 28 (a)(9)(A), (requiring, among other things, that an opening brief

contain an argument, with the reasons for the argument, and citations to authorities

and the record; see also Herrera-Castillo v. Holder, 573 F.3d 1004, 1010 (10th Cir.

2009) (holding that an issue that is not sufficiently raised in an opening brief is

waived).

                                   II.    DISCUSSION

      “The BIA lacks jurisdiction to review an immigration judge’s decision if an

alien has knowingly and intelligently 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 (internal quotation

marks omitted). We review 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, “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).

      In his opening brief, petitioner asserts that his lawyer’s deficient performance

is what led to the withdrawal of his application for cancellation of removal in


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exchange for voluntary departure. However, petitioner never mentions the waiver of

his right to appeal other than in a single conclusory sentence: “Nothing can be of

greater unfairness than the unknown and involuntary attorney caused Application

withdrawal, combined with an unknown and not agreed upon waiver of Appeal rights

serving no legitimate legal interest.” Pet’r Opening Br. at 5. This is insufficient

appellate argument.

      Rule 28(a)(9)(A) of the Federal Rules of Appellate Procedure requires, among

other things, that an opening brief contain an argument, with the reasons for the

argument, and citations to authorities and the record. As such, even construing

petitioner’s pro se liberally, see Hall, 935 F.2d at 1110, he has waived any argument

that his waiver of appeal rights was not knowing and voluntary. See Herrera-

Castillo, 573 F.3d at 1010.

      What petitioner argues in this court (and what he argued before the BIA) is

that his lawyer’s ineptitude caused the withdrawal of his application for cancellation

of removal. In particular, he argues that “[t]he only interest served [by enforcing the

decision] might arguabl[y] be that of an attorney riding himself of a fee disputing

client. This is not an interest to be upheld nor supported by any Court.” Pet’r

Opening Br. at 5-6.

      To prevail on such a claim, petitioner “must show that the conduct of former

counsel was so egregious that it rendered [his] hearing unfair.” Matter of B-B-, 22 I.

& N., Dec. 309, 311 (B.I.A. 1998). “[T]he voluntary departure grant involves a quid


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pro quo arrangement between the alien and the [g]overnment. In return for departing

within the time afforded for voluntary departure, an alien avoids certain adverse

consequences of a removal order.” In re Zmijewska, 24 I. & N. Dec. 87, 92 (B.I.A.

2007), citing 8 U.S.C. § 1182(a)(9)(A)(ii) (citation omitted). Voluntary departure

also provides a “generous period[]” in which to prepare for the actual departure. In

re B-B-, 22 I. & N. Dec. at 311. As such, the BIA has held that “there are strong

policy reasons for strictly adhering to and enforcing voluntary departure orders, not

the least of which is to discourage dilatory behavior.” Id. at 310. Moreover,

“subsequent dissatisfaction with a strategic decision of counsel is not grounds to

reopen.” Id.

      Measured against this standard, we agree with the BIA that petitioner has not

established that the conduct of his lawyer was so egregious as to result in an unfair

proceeding. First, the record reveals that the decision to withdraw the application for

cancellation of removal was made by petitioner, not his lawyer. Second, although the

lawyer had some difficulties getting the application filed and missed a court date due

to car trouble, none of this resulted in an unfair proceeding. And third, there is no

record evidence that a fee dispute had anything to do with petitioner’s decision to

withdraw the application and seek voluntary departure. Thus, petitioner has failed to

establish that he suffered any prejudice as the result of his lawyer’s conduct.




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      The petition for review is DENIED. We also deny petitioner’s request to

proceed in forma pauperis.


                                             Entered for the Court


                                             David M. Ebel
                                             Circuit Judge




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