                                                                            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                            NOT FOR PUBLICATION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

exhausted. Barron v. Ashcroft, 358 F.2d 674, 678 (9th Cir. 2004). However, we

“do not employ the exhaustion doctrine in a formalistic manner, especially where

the petitioner is pro se.” Ren v. Holder, 648 F.3d 1079, 1083 (9th Cir. 2011)

(internal quotations and citations omitted). We inquire “into whether the issue was

before the BIA such that it had the opportunity to correct its error.” Figueroa v.


                                           3
Mukasey, 543 F.3d 487, 492 (9th Cir. 2008); see also Kaganovich v. Gonzales, 470

F.3d 894, 897 (9th Cir. 2006) (finding exhaustion where a cursory and

unelaborated statement “was sufficient to put the BIA on notice . . . and the agency

had an opportunity to pass on this issue.”).

      Neither Orellana’s Notice of Appeal nor the attached letter explicitly

challenge the validity of his waiver of appeal. Thus, in its dismissal order, the BIA

stated that Orellana “makes no claim that his decision to waive appeal was not a

knowing and intelligent one.” However, the fact that Orellana challenged his

removal order after purportedly waiving his appeal put the issue of the waiver’s

validity before the BIA. Moreover, the BIA conducted its own review of the

record, concluding that “[t]he record reflects that the respondent waived appeal

(Tr. at 28).” The validity of the appeal waiver thus “was before the BIA such that

it had the opportunity to correct its error,” and Orellana exhausted his challenge.

Figueroa, 543 F.3d at 492.

      Orellana’s waiver of appeal was not knowing and voluntary, and he

exhausted his challenge to the validity of the appeal waiver. Thus, the BIA had

jurisdiction to hear Orellana’s appeal from the IJ’s removal order. The BIA’s

conclusion that it lacked such jurisdiction was erroneous.




                                          4
                                             II

      We deny Orellana’s petition for review on the basis of the BIA’s alternative

merits holding. The BIA held that, even if it had the authority to decide Orellana’s

appeal, it would dismiss that appeal on the merits, because Orellana had not

demonstrated prima facie eligibility for any relief. That the BIA disclaimed

jurisdiction over Orellana’s appeal did not render this alternative merits holding

dicta. See Container Stevedoring Co. v. Dir., Office of Workers Comp. Programs,

935 F.2d 1544, 1548-49 n.5 (9th Cir. 1991). Orellana does not directly challenge

the alternative merits holding on appeal, and that holding provides us a sufficient

basis for denying his petition for review.

                                             III

      We lack jurisdiction over Orellana’s due process claims, because he did not

exhaust all avenues of administrative relief. His Notice of Appeal to the BIA did

not raise, or even allude to, any due process challenges to his hearings before the

IJ. Although the BIA reviewed transcripts of Orellana’s merits hearing to confirm

that he conceded removability, there is no indication that the BIA considered any

due process issues that may have arisen during the hearing. Because Orellana’s

due process claims were not before the BIA such that it could correct any




                                             5
procedural errors, he has not exhausted those claims, and we lack jurisdiction over

them. Figueroa, 543 F.3d at 492.

      All pending motions are denied as moot.

PETITION DENIED.




                                         6
                                                                             FILED
Espana Orellana v. Sessions, No. 14-73489
                                                                              JUN 04 2018
THOMAS, Chief Judge, concurring:                                          MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


      I concur in full in the judgment of the court. I write separately to note that,

as Judge Berzon has persuasively explained, the appeal waiver regulations on

which the BIA relied for its conclusion that it lacked jurisdiction are inconsistent

with the Immigration and Nationality Act. See Garcia v. Lynch, 786 F.3d 789,

796-801 (9th Cir. 2015) (Berzon, J., concurring).

      The BIA relied on 8 C.F.R. §§ 1003.1(d)(2)(i)(G) and 1003.39 in

determining that Orellana had waived his right to appeal and thus that the IJ’s

decision had become administratively final. These regulations are inconsistent

with the governing statute, 8 U.S.C. § 1101(a)(47)(B). That statute provides that a

deportation order “shall become final upon the earlier of (i) a determination by the

Board of Immigration Appeals affirming such order; or (ii) the expiration of the

period in which the alien is permitted to seek review of such order by the Board of

Immigration Appeals.” Id. This definition also applies to a removal order. See

Ocampo v. Holder, 629 F.3d 923, 927 (9th Cir. 2010) (citing Singh v. Gonzales,

499 F.3d 969, 979 (9th Cir. 2007)). A removal order thus becomes

administratively final only upon affirmance by the BIA or the running of the

appeal period. Under the plain language of the statute, a waiver of the right to

appeal does not make a removal order administratively final and does not divest
the BIA of jurisdiction to review that order. Applying the regulations to trigger

administrative finality in this case violates the rule that “‘[a] regulation may not

serve to amend a statute, nor add to the statute something which is not there.’”

Ocampo, 629 F.3d at 927 (quoting Cal. Cosmetology Coal. v. Riley, 110 F.3d

1454, 1460 (9th Cir. 1997)).

      I would hold that, even if Orellana’s appeal waiver were otherwise valid, the

waiver would not render the IJ’s removal order administratively final. The BIA’s

conclusion that it lacked jurisdiction over Orellana’s appeal was thus erroneous,

regardless of whether Orellana’s waiver of his appeal rights was made voluntarily,

knowingly, and intelligently.




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