                                                              [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________                   FILED
                                                         U.S. COURT OF APPEALS
                             No. 08-12620                  ELEVENTH CIRCUIT
                                                             JANUARY 15, 2009
                         Non-Argument Calendar
                                                            THOMAS K. KAHN
                       ________________________
                                                                 CLERK

                         Agency No. A98-610-704

ERIYANTO WAHYUDI,


                                                                      Petitioner,

                                   versus

U.S. ATTORNEY GENERAL,

                                                                    Respondent.


                       ________________________

                   Petition for Review of a Decision of the
                        Board of Immigration Appeals
                        _________________________

                             (January 15, 2009)

Before TJOFLAT, BIRCH and HULL, Circuit Judges.

PER CURIAM:
      This petition for review raises two issues: (1) whether this court has

jurisdiction to review the petition, and (2) whether, if jurisdiction is present, the

Board of Immigration Appeals (“BIA”) erred in determining that petitioner waived

any appeal of the denial of his application for immigration relief. We issued a

jurisdictional question to the parties, asking whether Immigration and Nationality

Act (“INA”) § 242(a)(2)(B), 8 U.S.C. § 1252(a)(2)(B), limited our jurisdiction to

review the petition in this case. Petitioner asserts that we have jurisdiction because

he is challenging the BIA’s determination that it lacked jurisdiction over his

appeal, not the BIA’s discretionary denial of relief.

      We review jurisdictional questions de novo. Brooks v. Ashcroft, 283 F.3d

1268, 1272 (11th Cir. 2002). The INA provides:

      Notwithstanding any other provision of law (statutory or
      nonstatutory), including section 2241 of Title 28 or any other habeas
      corpus provision, and sections 1361 and 1651 of such title, and except
      as provided in subparagraph (D), and regardless of whether the
      judgment, decision, or action is made in removal proceedings, no
      court shall have jurisdiction to review –
             (i)    any judgment regarding the granting of relief under
                    section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this
                    title, or
             (ii) any other decision or action of the Attorney General or
                    the Secretary of Homeland Security the authority for
                    which is specified under this subchapter to be in the
                    discretion of the Attorney General or the Secretary of
                    Homeland Security, other than the granting of relief
                    under section 1158(a) of this title.

INA § 242 (a)(2)(B), 8 U.S.C. § 1252(a)(2)(B).
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      Section 1252(a)(2)(B)(ii) only applies to limit our review of discretionary

decisions authorized by statute, not discretionary decisions authorized by agency

regulation. Zafar v. U.S. Att’y Gen., 461 F.3d 1357, 1360-61 (11th Cir. 2006).

The BIA and its jurisdiction to review Immigration Judge (“IJ”) decisions are

created by agency regulations. See 8 C.F.R. § 1003.1 (defining the BIA),

8 C.F.R. § 1003.39 (providing that the IJ’s decision becomes final when an alien

waives appeal).

      We conclude that we have jurisdiction here because the agency regulations,

not statutory law, provided the source of the BIA’s authority; hence, any discretion

the BIA exercised was pursuant to regulation. We accordingly turn to the second

issue presented, the waiver issue.

      Petitioner argues that his appeal waiver was unknowing and involuntary, and

that the BIA should have allowed him an opportunity to file a brief before

concluding that the waiver was knowing and intelligent. He also argues that his

withdrawal of his application for asylum was unknowing and involuntary. The

only reason he withdrew the application was the duress the Department of

Homeland Security’s (“DHS’s”) threat of immediate detention – after the DHS

“sandbagged” him at his hearing before the IJ with new information about the

potentially fraudulent nature of his application. DHS’s presentation of this



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information, he submits, should have occurred prior to the commencement of the

hearing.

      In addition to contending that the withdrawal of his asylum application was

not knowing and voluntary, petitioner submits that the IJ erred in informing him of

his appellate rights because the IJ did not explain (1) his appeal rights regarding

denial of asylum or denial of a continuance and (2) the distinction between

granting 120 days for voluntary departure, which required an appeal waiver, and

granting 60 days for voluntary departure, which did not require an appeal waiver.

As a result of the IJ’s error, he incorrectly believed that he had no choice but to

waive his appeal by not discussing the possibility of granting 60 days for voluntary

departure.

      The sum and substance of petitioner’s arguments is that the manner in which

the IJ and the BIA handled his case deprived him of due process of law. He

therefore asks that we vacate the BIA’s decision and remand the case full

consideration of the merits of his asylum application.

      We review due process challenges de novo. Ali v. U.S. Att’y Gen., 443 F.3d

804, 808 (11th Cir. 2006). The BIA’s factual findings are reviewed under the

substantial evidence test. Al Najjar v. Ashcroft, 257 F.3d 1262, 1283 (11th Cir.

2001). Under the substantial evidence test, we must affirm the BIA’s decision if it

is “supported by reasonable, substantial, and probative evidence on the record
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considered as a whole.” Id. at 1284. “To reverse a factual finding by the BIA, this

Court must find not only that the evidence supports a contrary conclusion, but that

it compels one.” Farquharson v. U.S. Att’y Gen., 246 F.3d 1317, 1320 (11th Cir.

2001). The fact that evidence in the record also may support a conclusion contrary

to the administrative findings is not enough to justify a reversal. Adefemi v.

Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc).

      Denying an administrative appeal to an alien violates due process, at least

insofar as the administrative determination plays “a critical role in the subsequent

imposition of a criminal sanction.” United States v. Mendoza-Lopez, 481 U.S.

828, 837-38, 107 S.Ct. 2148, 2155, 95 L.Ed.2d 772 (1987). An alien may waive

the right to appeal, however, provided that the alien’s decision is knowing and

intelligent. See id. at 840, 107 S.Ct. at 2156 (noting an invalid waiver was “not

considered or intelligent”). Although we have not explicitly addressed waiver of

appeal rights in the immigration context, it appears that such waivers also must be

voluntary. See United States v. Bushert, 997 F.2d 1343, 1351 (direct criminal

appeal, holding that a waiver of appellate rights must be knowing and voluntary).

The voluntariness of the alien’s decision is a distinct inquiry from whether the

alien’s decision is knowing and intelligent. See Moran v. Burbine, 475 U.S. 412,

421, 106 S.Ct. 1135, 1140-41, 89 L.Ed.2d 410 (1986) (noting, in the context of a



                                          5
habeas petitioner’s Fifth Amendment claim, the distinction between and voluntary

choice and a knowing and intelligent choice).

      Having reviewed the administrative record, we conclude that substantial

evidence supports the BIA’s determination that petitioner’s appeal waiver was

valid. The record shows the IJ warned petitioner that withdrawal of his application

for relief would be final and that there would be no appeal. Moreover, petitioner

repeatedly confirmed that he understood what was taking place at the hearing. He

received the advice of counsel and stated that he was satisfied with that advice.

Accordingly, the petition is due to be denied.

      PETITION DENIED.




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