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

                            FOR THE TENTH CIRCUIT                           May 8, 2012

                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
JOSE DE JESUS PALACIOS-YANEZ,

             Petitioner,
                                                            No. 11-9545
v.                                                      (Petition for Review)

ERIC H. HOLDER, JR., United States
Attorney General,

             Respondent.


                            ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, McKAY and LUCERO, Circuit Judges.


      Jose de Jesus Palacios-Yanez (Palacios) petitions pro se for review of a final order

of removal issued by the Board of Immigration Appeals (BIA). Palacios challenges the

immigration judge’s (IJ) acceptance of his agreement to waive an appeal to the BIA in

exchange for 120 days’ pre-conclusion voluntary departure. An IJ may grant a


*
      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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
maximum of 120 days’ voluntary departure to an alien prior to the completion of

removal proceedings if the alien meets certain conditions, including withdrawing all

requests for relief and waiving appeal of all issues. See 8 U.S.C. § 1229c(a)(1);

8 C.F.R. § 1240.26(b)(1)(i).1 We have jurisdiction under 8 U.S.C. § 1252(a)(1), (2)(D),

and we deny Palacios’s petition for review.2

                                      Background

      Palacios, a native of Mexico, entered the United States without inspection in

1995. He has two children who are United States citizens, one born in 2006 and the

other in 2008. He was arrested in Tulsa, Oklahoma, on April 30, 2008, for driving

without a license and following too closely. The Department of Homeland Security

(DHS) instituted removal proceedings against Palacios, as an alien present in the

United States without being admitted or paroled. See 8 U.S.C. § 1182(a)(6)(A)(i).

Appearing with counsel at the IJ hearing, Palacios conceded his removability and

requested cancellation of removal for nonpermanent residents under 8 U.S.C.

§ 1229b(b)(1). During the hearing, after learning the nature of Palacios’s hardship

evidence, the IJ asked whether he would like to consider pre-conclusion voluntary

departure. Palacios and his attorney requested and received a brief recess to discuss

pre-conclusion voluntary departure.


1
       In contrast, voluntary departure granted at the conclusion of the proceedings is
limited to 60 days. 8 U.S.C. § 1229c(b)(2).
2
      This appeal was transferred from the Ninth Circuit.


                                          -2-
      Following the recess, Palacios, through counsel, announced that he and

counsel for DHS had reached an agreement whereby Palacios would withdraw all

requests for relief and would waive his right to appeal the IJ’s decision. In exchange,

DHS agreed not to oppose voluntary departure for a period of 120 days. The IJ then

reiterated the conditions:

              (1) [Palacios] withdrawing with prejudice, any outstanding
              requests for relief; (2) [Palacios] waiving the right to appeal the
              decision of the Court today; (3) [Palacios] will be granted
              voluntary departure for 120 days, which is the maximum allowed
              under the law, which means he must depart on or before
              December 8, 2009, which is a Tuesday.

Admin. R. at 74. After explaining the penalties for failure to depart voluntarily, the

IJ asked if Palacios accepted each of those conditions. On counsel’s request, the

conditions were translated for Palacios into Spanish. Thereafter, the following

exchange occurred between the IJ and Palacios:

      [IJ]: Now, Mr. Palacios, do you understand what I have explained to
      you?

      [Palacios]: Yes.

      [IJ]: And, sir, do you voluntarily accept each of these conditions in
      exchange for your grant of voluntary departure?

      [Palacios]: Yes, I do accept.

      [IJ]: And, Mr. Palacios, do you have any questions for the Court at this
      time before this hearing is adjourned?

      [Palacios]: No, just say that I’m surprised. This, this, decision caught
      me by surprise.



                                          -3-
Id. at 76. Palacios’s counsel then interceded to inquire what his client meant by

catching him by surprise, and another brief recess ensued. Following the recess,

Palacios’s counsel stated that he and his associate had spoken with Palacios in

Spanish and both attorneys were “satisfied that this is [Palacios’s] free and voluntary

act.” Id. at 77. Accordingly, the IJ entered a final decision granting Palacios

pre-conclusion voluntary departure for 120 days and stating that both sides had

waived their right to appeal.

       Palacios timely filed a pro se petition for review with the BIA. Citing

Palacios’s appeal waiver, the BIA dismissed the appeal for lack of jurisdiction in a

single-member decision. See 8 C.F.R. § 1003.1(d)(2)(i)(G) (providing that a single BIA

member “may summarily dismiss any appeal” where the appeal is “barred by an

affirmative waiver of the right of appeal that is clear on the record”). Palacios now seeks

review by this court. He asserts that his agreement to waive his right to appeal was the

result of ineffective assistance of counsel. In addition, Palacios makes several arguments

that he is entitled to cancellation of removal based on hardship to his family. Because we

conclude that his appeal waiver was valid, we do not consider Palacios’s claims that he

was eligible for cancellation of removal.

                                  Standards of Review

       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).

Thus, we must “look to the record for ‘substantial evidence’ supporting the agency’s


                                            -4-
decision: [O]ur duty is to guarantee that factual determinations are supported by

reasonable, substantial and probative evidence considering the record as a whole.”

Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006) (internal quotation

marks omitted). “The agency’s findings of fact are conclusive unless the record

demonstrates that ‘any reasonable adjudicator would be compelled to conclude to the

contrary.’” Ismaiel v. Mukasey, 516 F.3d 1198, 1204 (10th Cir. 2008) (quoting

8 U.S.C. § 1252(b)(4)(B) (further quotation omitted)).

                                      Discussion

      “The Fifth Amendment’s guarantee of due process of law is applicable to

aliens in removal proceedings. Even so, an alien’s due process rights are subject to

waiver.” Ferry v. Gonzales, 457 F.3d 1117, 1128-29 (10th Cir. 2006) (citations

omitted). To be valid, the waiver of the right to appeal to the BIA must be knowing

and voluntary. See United States v. Mendoza-Lopez, 481 U.S. 828, 840 (1987)

(holding that the respondents’ waivers of the right to appeal their deportation orders

“were not considered or intelligent,” so the respondents were improperly deprived of

judicial review of those orders).

      The sole issue presented on appeal is whether Palacios’s waiver of his right to

appeal was knowing and voluntary. Palacios does not challenge the pivotal evidence

establishing that the IJ informed him of the conditions for receiving 120 days’

voluntary departure and that he agreed to those conditions, including waiving his

right to appeal. Rather, he now contends that his attorney provided ineffective


                                         -5-
assistance because he withdrew the application for cancellation of removal without

Palacios’s consent.

      An alien “can state a Fifth Amendment violation if he proves that retained

counsel was ineffective and, as a result, he was denied a fundamentally fair

proceeding.” Tang v. Ashcroft, 354 F.3d 1192, 1196 (10th Cir. 2003) (internal

quotation marks omitted) (brackets omitted). Palacios’s ineffective-counsel claim is

contrary to the record evidence demonstrating his understanding and acceptance of

the terms for pre-conclusion voluntary departure, terms that were explained to him in

both English and Spanish. In addition, when Palacios expressed surprise at this

development, after further consultation with Palacios, his counsel clarified that

Palacios understood and accepted the conditions, which included withdrawing all

requests for relief and waiving appeal. Accordingly, because the BIA’s conclusion

does not compel a contrary result, we affirm the BIA’s determination that Palacios’s

appeal waiver is valid and enforceable.3




3
       Because we conclude that Palacios has failed to show that his attorney’s
actions denied him fundamental fairness, we do not address whether he has satisfied
the BIA’s requirements for bringing a claim of ineffective assistance of counsel. See
Tang, 354 F.3d at 1196.


                                           -6-
                             Conclusion

Palacios’s petition for review is DENIED.

                                       Entered for the Court


                                       Mary Beck Briscoe
                                       Chief Judge




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