                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 09-2366
                                     ___________

                   ERNESTO INOCENCIO PEREZ-HERNANDEZ,
                                                    Petitioner

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                                         Respondent
                    ____________________________________

                       On Petition for Review of an Order of the
                            Board of Immigration Appeals
                             (Agency No. A072-928-590)
                    Immigration Judge: Honorable Eugene Pugliese
                      ____________________________________

                 Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 July 14, 2010
       Before: MCKEE Chief Judge, HARDIMAN and COWEN, Circuit Judges

                             (Opinion filed: July 22, 2010 )
                                     ___________

                                      OPINION
                                     ___________

PER CURIAM

      Ernesto Inocencio Perez-Hernandez, a Mexican citizen, petitions for review of the

Immigration Judge’s (“IJ”) order of removal and the Board of Immigration Appeals’s

(“BIA”) denial of his request to remand the proceedings. For the following reasons, we
will deny the petition for review.

                                             I.

       The date and circumstances of Perez-Hernandez’s entry into the United States are

unclear. However, in 1989, while living in California, he pled guilty to two counts of

possession, with intent to sell, heroin and cocaine. He was sentenced to ninety days in jail

and three years of probation. In 1995, Perez-Hernandez’s then-wife successfully filed an

I-130 petition on behalf of Perez-Hernandez, and Perez-Hernandez’s subsequent I-485

petition for adjustment of status (on which he did not list his convictions) was approved

in November 1995. Ten years later, in November 2005, Perez-Hernandez applied to

renew his permanent resident card. His application was denied because he did not

respond to the request for documentation regarding his 1989 convictions. In September

2006, Perez-Hernandez was placed in removal proceedings after he received a Notice to

Appear that charged him as deportable under 8 U.S.C. §§ 1227(a)(1)(A), (a)(2)(A)(iii),

and (a)(2)(B)(i).

       At Perez-Hernandez’s removal proceedings, the IJ determined that there was

sufficient evidence to sustain the charges and ordered Perez-Hernandez removed. During

the hearing, Perez-Hernandez’s counsel stated that he did not believe that his client was

eligible for any relief. After Perez-Hernandez’s attorney indicated that he would be

willing to accept a deportation order, the IJ engaged in the following discussion with

Perez-Hernandez and his attorney, Jorge Coombs:



                                             2
              IJ: Mr. Perez, we’ve been talking with your lawyer . . . and he doesn’t
              see that you have any relief and I don’t either. But if you want to
              continue to fight this case you’re certainly welcome to do it or if you
              have any applications you want to file, you can do that. But I assume
              you’ve discussed your case with Mr. Coombs at some length. Is that
              true? Yes?
              Perez-Hernandez: Yes.
              IJ: He indicates that you would be willing to accept a deportation order
              today, is that true?
              Perez-Hernandez: Yes.
              IJ: Okay, and did you talk about asylum and persecution and those
              things with Mr. Coombs?
              Perez-Hernandez: Yes.
              IJ: Okay. And have you determined that that’s not an appropriate
              remedy for you?
              Perez-Hernandez: Yes.
              IJ: And you’re happy with the representation you got from Mr.
              Coombs?
              Perez-Hernandez: Yes.
              IJ: And do you have any questions because now I am going to give
              you a final order of deportation to Mexico?
              Perez-Hernandez: No.
              IJ: Okay.
              IJ: And this is final, correct Mr. Coombs?
              Coombs: Yes, Your Honor.

The IJ then signed a removal order, which stated that Perez-Hernandez had waived his

right to appeal.

       Perez-Hernandez thereafter obtained new counsel, who appealed to the BIA

claiming that his previous counsel was ineffective. Perez-Hernandez argued that, under

I.N.S. v. St. Cyr, 533 U.S. 289 (2001), his attorney erred by stating that he was not

eligible for a waiver of inadmissibility under 8 U.S.C. § 1182(c). In his brief to the BIA,

Perez-Hernandez admitted that he had not complied with the requirements for proceeding


                                             3
on an ineffective assistance of counsel claim set forth by Matter of Lozada, 19 I. & N.

Dec. 637 (BIA 1988), but asserted that he was “in the process” of doing so.

       Perez-Hernandez’s appeal was dismissed for lack of jurisdiction because he had

waived his right to appeal by agreeing to the deportation order. The BIA also considered

the appeal as a motion to reopen seeking a remand, but, citing to Matter of Coelho, 20 I.

& N. Dec. 464, 471 (BIA 1992), found that no remand was in order. The BIA

acknowledged that it may reopen proceedings due to ineffective assistance of counsel if

the petitioner shows that he was prejudiced by counsel’s performance. See Matter of

Compean, 24 I. & N. Dec. 710 (A.G. 2009), vacated by 25 I. & N. Dec. 1 (BIA 2009).1

Because Perez-Hernandez he did not demonstrate that he was eligible for a waiver of

inadmissability, the BIA determined that he could not establish that he was prejudiced by

his counsel’s performance. The BIA also concluded that Perez-Hernandez had conceded

that he did not comply with Lozada’s procedural requirements for raising an ineffective

assistance claim.

       Perez-Hernandez, through counsel, now petitions for review. The government

opposes the petition for review, and has also moved to dismiss the petition, asserting that




       1
              While this matter was pending, the Attorney General partially overruled the
decision in Lozada. See Matter of Compean, 24 I. & N. Dec. 710 (A.G. 2009) (Compean
I). Compean I, however, applied only to claims raised after its publication date of January
7, 2009. Thus, even if Compean I had not recently been vacated, see Matter of Compean,
25 I. & N. Dec. 1 (BIA 2009), Lozada would have applied to Perez-Hernandez’s
ineffective assistance claim.

                                             4
this Court lacks jurisdiction because Perez-Hernandez waived his appellate rights and

failed to exhaust his administrative remedies challenging the validity of the waiver.

                                              II.

                                   (A) Motion to Dismiss

       This Court 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). As

the government correctly argues, when a petitioner waives his right to appeal, the BIA

lacks jurisdiction to review the IJ’s decision. As a result, the petitioner fails to exhaust

his administrative remedies. Joo v. I.N.S., 813 F.2d 211, 212 (9th Cir. 1987). However,

we have held that the BIA’s sua sponte discussion of an issue constitutes exhaustion. Lin

v. Att’y Gen., 543 F.3d 114, 123-24 (3d Cir. 2008). Here, although Perez-Hernandez did

not raise the waiver of his appellate rights to the BIA, the BIA nevertheless engaged in a

sua sponte discussion of the issue, ultimately determining that he had waived his right to

appeal and that it lacked jurisdiction to review the IJ’s removal order. Accordingly, the

issue of whether Perez-Hernandez waived his appellate rights is exhausted and we have

jurisdiction to review it. See id. Thus, we deny the government’s motion to dismiss.2

       We agree that the BIA lacked jurisdiction over Perez-Hernandez’s appeal because

he waived his appellate rights. Such a waiver comports with due process only if it is done



       2
               The government also asserts that, because Perez-Hernandez waived his
appellate rights, we do not have jurisdiction to review the IJ’s removal order. While that
is true, Perez-Hernandez only seeks review of the BIA’s order.

                                               5
“voluntarily and intelligently.” Richardson v. U.S., 558 F.3d 216, 219-20 (3d Cir. 2009).

Perez-Hernandez argues that his waiver does not meet this standard because: (1) the

word “appeal” was never used in his proceedings, (2) he was never explicitly asked

whether he wanted to appeal, and (3) neither he nor his attorney knew that he had a valid

basis for an appeal. The BIA, when determining that Perez-Hernandez had waived his

right to appeal, explained that he had not argued that his waiver was invalid and that he:

       answered in the affirmative when directly questioned by the [IJ] as to whether
       he had discussed his case with his attorney, whether he was willing to accept
       a deportation order at that time, whether he had discussed possible relief with
       his attorney, and whether he was happy with the representation he had received
       from his counsel. The [IJ] also asked whether a final deportation order was
       accepted, to which respondent’s counsel answered in the affirmative.

       The BIA has explained that, although determining the validity of a waiver is a fact-

specific inquiry, “[a]sking the parties whether they accept a decision as ‘final’ is a

shorthand expression commonly used by [IJs]. . . . Those who understand the meaning of

this shorthand expression, such as aliens represented by attorneys, may effectively waive

appeal in response to this simple question.” In re Rodriguez-Diaz, 22 I. & N. Dec. 1320,

1322 (BIA 2000); Ali v. Mukasey, 525 F.3d 171, 173-74 (2d Cir. 2008) (“We now agree .

. . that accepting an IJ’s decision as final can serve as an effective waiver of appeal when

the record of the interaction between the IJ and the alien fairly supports the conclusion

that the alien or his counsel understood the nature of the waiver.”) (emphasis added).

       Here, there is no contention that Perez-Hernandez’s attorney did not understand

the meaning of accepting the order as “final.” Although Perez-Hernandez now implies

                                              6
that he did not understand that he was waiving his appellate rights, he also concedes that

he agreed to accept the deportation order as final because he believed that he had no basis

for appeal. Accordingly, we cannot say that the BIA incorrectly determined that Perez-

Hernandez waived his appellate rights and that it thus lacked jurisdiction to review the

IJ’s order.

                                  (B) Petition for Review

       Because the BIA also construed Perez-Hernandez’s appeal as a motion to reopen

seeking a remand based on ineffective assistance of counsel, we have jurisdiction to

review its decision that reopening the proceeding was unwarranted. See Fadiga v. Att’y

Gen., 488 F.3d 142, 153-54 (3d Cir. 2007).3 We review the denial of a motion to reopen

for abuse of discretion. Id. at 153. Under that standard, the BIA’s decision may be

reversed only if it is “arbitrary, irrational, or contrary to law.” Sevoian v. Ashcroft, 290

F.3d 166, 174 (3d Cir. 2002). However, the determination of an underlying procedural

due process claim, such as a claim for ineffective assistance of counsel, is reviewed de

novo. Fadiga, 488 F.3d at 153-54.

       Proceeding on a motion to reopen based on an ineffective assistance of counsel

claim requires not only that the petitioner demonstrate that he suffered prejudice as a




       3
              It is somewhat unclear whether the BIA considered Perez-Hernandez’s
motion as seeking remand or reopening. However, “we consider these devices as
equivalent for jurisdictional and standard of review purposes.” Korytnyuk v. Ashcroft,
396 F.3d 272, 282 (3d Cir. 2005).

                                              7
result of his attorney’s deficient representation, but also that he comply with the three-

prong test set forth by Lozada. Lu v. Ashcroft, 259 F.3d 127, 133 (3d Cir. 2001). Under

Lozada, the petitioner must: (1) support his claim with an affidavit attesting to the

relevant facts; (2) inform former counsel of the allegations and provide counsel with an

opportunity to respond; and (3) state whether a complaint has been filed with appropriate

disciplinary authorities regarding the allegedly deficient representation, and if not, why

not. 19 I. & N. Dec. at 639.

       As the BIA stated, Perez-Hernandez conceded that he did not comply with

Lozada’s requirements. He does not provide an adequate explanation for this lapse,

arguing only that he was unable to timely obtain his case file from his previous attorney.

However, it is unclear how this delay kept him from, at the very least, preparing an

affidavit (the first requirement). Perez-Hernandez instead argues that under this Court’s

precedent, the Lozada requirements are not applied strictly, and that he should be excused

from complying with them. In support of this contention, Perez-Hernandez cites to Lu, in

which we stated that there are “inherent dangers in applying a strict, formulaic

interpretation” of Lozada’s requirements if the petitioner provides a reasonable

explanation for his failure to comply. 259 F.3d at133. However, Lu also held that the

Lozada test is “generally not an abuse of the Board’s wide-ranging discretion.” Id.

Because Perez-Hernandez failed to comply with the Lozada test and did not adequately

explain this failure, the BIA did not abuse its discretion in declining to reopen the



                                              8
removal proceedings.4

       We find Perez-Hernandez’s remaining arguments meritless. Based on the

foregoing, we will deny the petition for review.




       4
             Because the BIA appropriately denied the motion to reopen based on Perez-
Hernandez’s failure to comply with the procedural requirements, it is unnecessary to
determine whether Perez-Hernandez was prejudiced by his counsel’s alleged deficient
performance. See Lu, 259 F.3d at 135 n.5.

                                             9
