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

                              FOR THE TENTH CIRCUIT                  September 28, 2012

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
ANDRES ARRIAYA-FLORES,

                Petitioner,

v.                                                         No. 11-9564
                                                       (Petition for Review)
ERIC H. HOLDER, JR., United States
Attorney General,

                Respondent.


                              ORDER AND JUDGMENT*


Before HARTZ, ANDERSON, and EBEL, Circuit Judges.


       Andres Arriaya-Flores, a native and citizen of Mexico, petitions for review of

a final administrative order of removal issued by the Immigration and Customs

Enforcement agency (ICE). Because Arriaya-Flores failed to exhaust his

administrative remedies before the agency, we DISMISS the petition for lack

jurisdiction.


*
      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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
                                    BACKGROUND

      Arriaya-Flores entered this country in 2005 without inspection. In 2010, he

was charged in Utah state court with violating Utah’s Controlled Substances Act.

The charging information alleged that Arriaya-Flores had sold detectives “42

balloons containing a substance that field tested positive for heroin” and that “a twist

of a substance that field tested positive for cocaine” was found inside his car. R. at 8.

He ultimately pleaded guilty to (1) attempting to arrange the distribution of a

controlled substance, a third-degree felony; and (2) attempting to possess a controlled

substance, a misdemeanor.

      On September 9, 2011, upon Arriaya-Flores’s release from state custody, ICE

detained him and served him with a “Notice of Intent to Issue a Final Administrative

Removal Order” on the basis that he was deportable as an aggravated felon. Id. at 2.

The administrative record indicates that an immigration-enforcement agent

“explained and/or served” the Notice of Intent in Spanish, and advised Arriaya-Flores

of his right to contact the Mexican consulate, gave him a list of free legal services,

and offered him an opportunity to make a telephone call, which he refused. Id. at 3;

see also id. at 21. At 8:30 a.m., Arriaya-Flores signed the Notice of Intent with three

boxes checked, indicating:

      I Do Not Wish to Contest and/or to Request Withholding of Removal

      I admit the allegations and charge in this Notice of Intent. I admit that I
      am deportable and acknowledge that I am not eligible for any form of
      relief from removal. I waive my right to rebut and contest the above


                                          -2-
       charges. I do not wish to request withholding or deferral of removal. I
       wish to be removed to Mexico.

       I understand that I have the right to remain in the United States for 14
       calendar days in order to apply for judicial review. I do not wish this
       opportunity. I waive this right.

Id. at 3.

       On September 12, an attorney claiming to represent Arriaya-Flores

hand-delivered to ICE a “Motion to District Director for Immigration Bond under

INA 236(a).” Supp. R. at 1 (emphasis omitted). The motion was accompanied by,

among other things, a “Form G-28, Notice of Entry of Appearance as Attorney,” id.

at 1, and argument that Arriaya-Flores’s convictions did not preclude issuance of a

bond. The G-28 form had been signed roughly one month earlier by Arriaya-Flores

and his counsel.1

       ICE summarily denied the request for a bond by fax on September 13. On

September 15, ICE served Arriaya-Flores personally with a “Final Administrative

Removal Order,” R. at 1, and removed him to Mexico that day. On September 28,

Arriaya-Flores’s counsel requested the charging documents in the case and indicated

that she had not learned of Arriaya-Flores’s deportation until the day after he was

transported to Mexico.

1
       Counsel for Arriaya-Flores states in the opening brief that she telephoned ICE
on September 8, before Arriaya-Flores was in ICE custody, seeking his alien number
so she could submit the G-28 form. She also states that she faxed the G-28 form to
ICE around 1:00 p.m. on September 9. Nevertheless, whether the G-28 was given to
ICE on the afternoon of September 9 or on September 12 is not determinative of our
analysis.

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      Arriaya-Flores petitions this court for review.

                                     DISCUSSION

      Congress has established expedited removal proceedings for aliens who have

been convicted of an aggravated felony and who are not legal permanent residents.

See 8 U.S.C. § 1228(b)(1) & (2). An alien in expedited removal proceedings who has

been served with a Notice of Intent to remove has several options, including filing a

response to the notice in order to either “rebut the allegations contained in the Notice

of Intent” or “request[ ] the opportunity to review the Government’s evidence.”

8 C.F.R. § 238.1(c)(1) & (2). Alternatively, the alien can concede deportability. Id.

§ 238.1(d)(1). In that event, “the deciding Service officer shall issue and cause to be

served upon the alien a Final Administrative Removal Order.” Id. ICE may not

execute that order, though, “until 14 calendar days have passed from the date that

such order was issued, unless waived by the alien, in order that the alien has an

opportunity to apply for judicial review.” 8 U.S.C. § 1228(b)(3).

      Here, Arriaya-Flores waived any challenges to the Notice of Intent’s charges

and he conceded deportability. Further, he waived his right to remain in the United

States while he sought judicial review. Although he now seeks judicial review of the

agency’s final removal order, arguing that his removal was improper because his

convictions do not constitute aggravated felonies, he did not make that argument

before waiving his rights and conceding deportability. Thus, he failed to present his

argument to the agency in time for it to be administratively addressed.


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      We “may review a final order of removal only if . . . the alien has exhausted all

administrative remedies available to the alien as of right.” 8 U.S.C. § 1252(d)(1).

This jurisdictional command applies to expedited removal proceedings. See, e.g.,

Escoto-Castillo v. Napolitano, 658 F.3d 864, 866 (8th Cir. 2011) (collecting cases).

Exhaustion gives the agency “the opportunity to apply its specialized knowledge and

experience to the matter, and to resolve a controversy or correct its own errors before

judicial intervention.” Sidabutar v. Gonzales, 503 F.3d 1116, 1121 (10th Cir. 2007)

(citation and quotations omitted).

      Arriaya-Flores seeks to avoid the exhaustion rule, arguing that his waivers of

“rights were involuntarily entered where [he] asked for his attorney several times and

where the ICE officer failed to adequately explain . . . that by signing the [Notice of

Intent] [he] was waiving his rights to counsel, his right to contest the charges and his

rights to see an immigration judge for relief against removal and bond.” Aplt. Br. at

45. Arriaya-Flores contends that “[t]his all violated his due process rights.” Id.

      In removal proceedings, “aliens are entitled only to procedural due process,

which provides the opportunity to be heard at a meaningful time and in a meaningful

manner.” Schroeck v. Gonzales, 429 F.3d 947, 952 (10th Cir. 2005) (quotation

omitted). “[T]he procedural safeguards are minimal because aliens do not have a

constitutional right to enter or remain in the United States.” Id. at 951-52 (quotation

omitted).




                                          -5-
      To show that his waivers were involuntary, counsel for Arriaya-Flores relies

on a declaration she prepared that purports to recount a telephone conversation with

Arriaya-Flores while he was in Mexico in January 2012. In the opening paragraph of

that document, “[c]ounsel asks for leave to sign the [declaration] for Mr. Flores

where Mr. Flores has attested to [c]ounsel that the . . . stated [assertions concerning

removal] in fact occurred.” Aplt. Opening Br., Addendum B at 1. We reject this

document. It does not qualify as Arriaya-Flores’s own declaration. See 28 U.S.C.

§ 1746 (providing for an unsworn declaration “in writing of such person which is

subscribed by him, as true under penalty of perjury” (emphasis added)). Further,

contrary to the assertion of Arriaya-Flores’s counsel, this document is not authorized

by 10th Cir. R. 10.3(D)(1), which requires an appellant to include in the record a

copy of “the pages of the reporter’s transcript” when appealing “the admission or

exclusion of evidence.” This document is clearly not a transcript, and was neither

admitted nor excluded from the administrative proceedings—indeed, it did not come

into existence until months after the proceedings closed. Finally, to the extent the

document could be viewed alternatively as counsel’s own declaration, it it entirely

hearsay, providing little reliable evidence.2 Thus, Arriaya-Flores has failed to




2
      Additionally, we must “decide [Arriaya-Flores’s] petition [for review] only on
the administrative record on which the order of removal is based.” 8 U.S.C. §
1252(b)(4)(A). The purported declaration is not in the record.


                                          -6-
adequately support his claim that ICE misled and coerced him into waiving his rights

and signing the Notice of Intent.3

      Arriaya-Flores also argues that ICE violated his due process rights by

“fail[ing] to properly acknowledge the legal representation by Counsel.” Aplt. Br. at

46. He contends that “ICE’s policy of not allowing G-28s to be filed until the alien is

not only in the custody of ICE but has been charged” prevented counsel from

entering an appearance until after he was in custody and had waived his rights. Id. at

44. But as Arriaya-Flores acknowledges, the reason ICE does not accept G-28 forms

before an alien is in custody and charged is that “[o]therwise, ICE . . . cannot track

which G-28 goes to which alien.” Aplt. Br. at 11. “[I]t is a touchstone of

administrative law that the formulation of procedures is basically to be left within the

discretion of the agencies to which Congress had confided the responsibility for

substantive judgments.” Sidabutar, 503 F.3d at 1120 (quotation and brackets

omitted). Arriaya-Flores has not shown that ICE’s policy is an abuse of discretion.

Indeed, ICE’s policy is consistent with the regulation that “commence[s] [expedited




3
        Insofar as Arriaya-Flores asserts that the language in the Notice of Intent was
not understandable, he fails to devote any supporting argument or authority. We
therefore do not consider that assertion. See Herrera-Castillo v. Holder, 573 F.3d
1004, 1010 (10th Cir. 2009) (explaining that an alien waives an issue by failing to
make argument or cite authority to support his assertion); see also Fed. R. App. P.
28(a)(9)(A) (requiring that an appellant’s argument be supported by contentions and
reasoning, with citations to authorities and parts of the record on which the appellant
relies).


                                          -7-
removal proceedings] upon personal service of the Notice of Intent upon the alien.”

8 C.F.R. § 1238.1(b)(2)(i).

      Moreover, the timing of the G-28’s submission had no effect on

Arriaya-Flores’s waivers, given that despite having signed the G-28 roughly one

month before being detained by ICE and thus being aware of counsel’s

representation, he nevertheless refused the opportunity to telephone counsel and take

advantage of that representation before waiving his rights. Consequently,

Arriaya-Flores was not harmed by ICE’s policy, and therefore, his due process rights

were not violated, see Alzainati v. Holder, 568 F.3d 844, 851 (10th Cir. 2009) (“To

prevail on a due process claim, an alien must establish not only error, but

prejudice.”).

                                    CONCLUSION

      Because Arriaya-Flores failed to exhaust his administrative remedies, his

petition for review is DISMISSED. But his motion for leave to proceed in forma

pauperis is GRANTED. The government’s motion to withdraw its motion for

reconsideration of this court’s order for re-certification of the record is GRANTED.

                                               Entered for the Court


                                               Stephen H. Anderson
                                               Circuit Judge




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