SHIH

                                                          Interim Decision #3206




                            MATTER OF SHIH
                           In Exclusion Proceedings

                                   A-70107635

                    Decided by Board August 20, 1993

(1) The decision of an immigration judge becomes final immediately upon the waiver of
  an alien's right to appeal.
(2) The Board of Immigration Appeals is without jurisdiction to adjudicate a case in
  which the alien has waived the right to appeaL
EXCLUDABLE: Act of 1952—Sec. 212(a)(5)(A)(i) [

(a)(5)(A)(0)—No
                                  valid labor certification
                              Sec. 212(a)(6)(CXi) [

(a)(6)0.4(i))-
                                 Fraud or willful misrepresentation of a material fact
                              Sec. 212(a)(7)(A)(i)(I) [

(a)(7)(A)(i)(1)1—
                                 No valid immigrant visa

ON BEHALF OF APPLICANT:                            ON BEHALF OF SERVICE:
  Cathy H. Tao, Esquire                             Charles E. Martinez
  261 South Figueroa Street, Suite 205               General Attorney
  Los Angeles, California 90012

BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members


    The applicant has filed an appeal from a March 17, 1993, decision
of the immigration judge_ The appeal will be dismissed for lack of
jurisdiction.
    In an oral decision on March 17, 1993, the immigration judge found
that the applicant was excludable on the grounds set forth above,
determined that he had abandoned his applications for relief, and
ordered that he be excluded and deported from the United States.
    After issuing her decision, the immigration judge told the applicant
that he could accept her decision, or, if he thought her decision was
 incorrect or unjust, he could appeal to a higher court. The immigration
judge specifically told the applicant that if he accepted the decision, it
would be final_
  The immigration judge then asked the applicant what he wished to
do. The applicant replied that it was up to the immigration judge. The
immigration judge did not accept the applicant's response, telling him
                                         697
Interim Decision #3206

that it was his decision. She again asked the applicant whether he
wanted to accept the decision or appeal it. The applicant stated, "I will
not appeal."
   In her summary of the oral decision, the immigration judge
determined that the applicant had waived appeal.
   The applicant filed a Notice of Appeal (Form EOIR-26) on
Monday, March 29, 1993, which is within the time specified in 

(b) (1993).' With respect to his waiver of the appeal, the
applicant submits that his waiver was not made intelligently and that it
was not made after considered judgment.
   An alien in exclusion proceedings must be advised of his right to
take an appeal from a decision of an immigration judge. Section 236(b)
of the Immigration and Nationality Act, 

(b) (1988); cf

(c), 242.16(a) (1993) (deportation proceedings).
   The regulations define when a decision of the immigration judge
becomes administratively final. See 

 (1993); cf. 

 (1993) (deportation proceedings); see also 

(b), (c) (1993).
   From the time of its codification on March 2, 1987, until April 5,
1992, 

 provided:
      Except when certified to the Board, the decision of the Immigration Judge
   becomes final upon waiver of appeal or upon expiration of the time to appeal if no
   appeal is taken.
See 

, 2939 (1987).
  However, effective April 6, 1992, 

 was amended and
redesignated as 

 (1993). See 

,
11,573 (1992).2 The current regulation provides:
      Except when certified to the Board, the decision of the Immigration Judge
   becomes final upon waiver of appeal or upon expiration of the time to appeal if no
   appeal is taken whichever occurs first. (Emphasis added.)
   The italicized portion of 

 (1993) was added in 1992
in order to "prevent any confusion in fixing a time certain for a
decision to be final." 57 Fed. Reg 11,568, 11,570 (1992)_ It is obvious
that the intent of this revision is to clarify that the decision of the
  'Under 

(b) (1993), aliens have 10 calendar days after service of a
decision (13 days if the decision is mailed) in which to file a Notice of Appeal with the
Office of the Immigration Judge having administrative control over the record of
proceeding. If the final date for filing falls on a Saturday, Sunday, or legal holiday, the
appeal time is extended to the next business day. Cf. 

(a) (1993)
(deportation proceedings). See generally Matter of Escobar, 

 (BIA
1983).
  2 When 

 was amended and redesignated as 

, the crossreferences to it at 

 and 242.20 (1993) were inadvertently not updated.

                                           ACM
                                                  Interim Decision #3206

 immigration judge becomes final immediately upon waiver of the right
to appeal.
   In these proceedings, the immigration judge advised the applicant
of his right to appeal the decision. The applicant, after having been
advised of his rights, waived appeal. At that point, the immigration
judge's decision became final. See 

, 236.6 (1993).
Because the immigration judge's decision is final, the applicant's
subsequent attempt to withdraw his waiver by filing a Notice of
Appeal within the time specified in 

(6) (1993) has no
effect. Similarly, inasmuch as the immigration judge's decision is final,
this Board lacks jurisdiction to adjudicate the case before us.
   We note, however, that if the applicant wishes to raise the issue
regarding whether his waiver was knowingly and intelligently made, he
should file a motion with the immigration judge. See Matter of
Mladineo, 

 (BIA 1974); see also Matter of Anselmo, 

 (BIA 1989) (noting that after withdrawal of an appeal,
jurisdiction over any substantive motion lies with the immigration
judge).
   Accordingly, the appeal will be dismissed for lack of jurisdiction.
   ORDER: The appeal is dismissed for lack of jurisdiction. The
record is returned to the local Office of the triunigration Judge without
further action.