PATINO

Cite as 

 (BIA 2001)                                  Interim Decision #3448




               In re Juana Claudia PATINO, Respondent
                              File A72 957 684 – Reno
                                Decided May 9, 2001
                           U.S. Department of Justice
                     Executive Office for Immigration Review
                         Board of Immigration Appeals

   A party wishing to challenge the validity of an appeal waiver may file either a motion to
reconsider with the Immigration Judge or an appeal directly with the Board of Immigration
Appeals.

FOR RESPONDENT: James J. Kelly, Esquire, Reno, Nevada

FOR THE IMMIGRATION AND NATURALIZATION SERVICE: Mary Jean Lambert,
Assistant District Counsel

BEFORE: Board En Banc: SCIALABBA, Acting Chairman; DUNNE, Vice Chairman;
        HEILMAN, SCHMIDT, HOLMES, HURWITZ, VILLAGELIU, FILPPU,
        COLE, GUENDELSBERGER, MATHON, JONES, GRANT, MOSCATO,
        MILLER, BRENNAN, ESPENOZA, OSUNA, and OHLSON, Board
        Members. Concurring Opinion: ROSENBERG, Board Member.
MOSCATO, Board Member:

   The respondent has appealed from an Immigration Judge’s refusal to entertain
her motion to reopen deportation proceedings. The appeal will be sustained, and
the record will be remanded to the Immigration Court.

                                I. BACKGROUND
   On October 19, 1998, the Immigration Judge granted the respondent
voluntary departure with an alternate order of deportation to Mexico. The
record reflects that both the respondent, through counsel, and the Immigration
and Naturalization Service waived their right to appeal at the conclusion of
proceedings.
   On November 18, 1998, the respondent attempted to file a motion to reopen,
better characterized as a motion to reconsider, with the Immigration Judge, in
which she challenged the validity of her waiver of the right to appeal. The
motion was rejected by a clerk of the Immigration Court, who advised the
respondent, pursuant to the instruction of the Immigration Judge, that the


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Immigration Judge did not have jurisdiction to entertain her motion and that “this
case must go to” the Board.1
   On December 17, 1998, the respondent filed the instant appeal, wherein she
asserts that her counsel before the Immigration Judge was ineffective and that
counsel was not authorized to withdraw her application for suspension of
deportation. The respondent attached to her Notice of Appeal (Form EOIR-26)
the motion she filed with the Immigration Judge, and she asks that we consider
her appeal notwithstanding her waiver of that right. In her motion, the
respondent maintains that, because of the ineffective assistance of her counsel,
she did not knowingly and intelligently waive her right to appeal. That being the
case, the respondent argues, the Immigration Judge should have entertained her
motion, pursuant to the procedure set forth in Matter of Shih, 

(BIA 1993).
   In response to the appeal, the Service argues that Immigration Judge’s refusal
to accept the respondent’s motion does not confer jurisdiction on the Board.
The Service asks that we dismiss the respondent’s appeal for lack of jurisdiction.
The Service also contests the respondent’s rendition of events and her claim of
ineffective assistance of counsel.

                                       II. ISSUE
   At issue is the proper procedure for challenging a waiver of the right to
appeal. We find that a party wishing to challenge the validity of an appeal waiver
may file either a motion to reconsider with the Immigration Judge or an appeal
directly with the Board.

                                 III. DISCUSSION
   Given the unusual circumstances of this case, we will consolidate the
arguments of the respondent’s appeal and her underlying motion.
   A Notice of Appeal must be filed within 30 calendar days of an Immigration
Judge’s oral decision or the mailing of a written decision, with allowances made
for deadlines that fall on a weekend or holiday. See 

(b), (c)
(2001). The respondent’s appeal may or may not be untimely, depending on
whether her appeal deadline is calculated from the date of her deportation order
or from the rejection of her motion by the Immigration Court. Therefore, to
avoid any issues of timeliness, we will certify the respondent’s appeal and

1
    Because the motion was rejected by the court, the motion was never actually “filed,” and
therefore the original motion does not appear in the record. However, a copy of the motion
is included in the record, and we glean from the canceled date stamp on current counsel’s
Notice of Entry of Appearance as Attorney or Representative Before the Office of the
Immigration Judge (Form EOIR-28) that the respondent attempted to file the motion on
November 18, 1998. Consequently, the motion would have been timely, had it been accepted
by the Immigration Court.

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consider it on our own authority. 

(c) (2001). However, for
reasons that will be discussed below, we here assume jurisdiction for the limited
purpose of considering the procedural concerns raised by the respondent’s case.
   Whenever the right to appeal is waived, the decision of the Immigration Judge
becomes final and may be implemented immediately. See 

(a)(1),
3.39 (2001). A waiver of the right to appeal thus relinquishes the parties’
opportunity to seek review of the Immigration Judge’s ruling. Given the
profound ramifications of such a waiver, it is important that the waiver be
knowingly and intelligently made. See United States v. Mendoza-Lopez, 

 (1987); see also Matter of Rodriguez-Diaz, Interim Decision
3431 (BIA 2000).
   In many instances, the question whether a waiver was knowingly and
intelligently made is a factual one, best assessed by the Immigration Judge who
received and recorded the waiver. Accordingly, we have, as a practice, expected
parties to take any challenges to an appeal waiver to the Immigration Judge. See
Matter of Shih, supra (opining that a party wishing to challenge an appeal
waiver should file a motion with the Immigration Judge).
   As a general matter, a waiver of appeal may limit the jurisdiction of the
Board, but not that of the Immigration Judge. See 

(a)(1) (stating,
inter alia, that an appeal from the decision of an Immigration Judge may not be
filed by a party who has waived appeal). Within the bounds of statute and
regulation, and until such time as an appeal is properly before the Board, the
Immigration Judge has continuing jurisdiction to entertain motions regarding
proceedings that were previously before the Immigration Judge. An
Immigration Judge may entertain a motion to reconsider that contests the
validity of an appeal waiver, provided that the motion is timely and otherwise
satisfies the pertinent regulations. See generally 

(b)(1) (2001).
   The fact that the Immigration Judge can entertain such a motion does not
preclude the Board from considering an appeal concerning the validity of an
appeal waiver. We acknowledge that the Board may not exercise jurisdiction
over a case once the right to appeal has been waived. 

(a)(1), 3.39.
Yet we are not divested of jurisdiction where the waiver is not valid. Cf. Matter
of Rodriguez-Diaz, supra; Matter of Ocampo, Interim Decision 3429
(BIA 2000). We do possess jurisdiction to consider the validity of an appeal
waiver; we proceed to the substance of the appeal only if the waiver is not valid
and the Board would otherwise have jurisdiction.

                            IV. CONCLUSION
   Accordingly, a party wishing to challenge a waiver of appeal has one of two
options: filing an appeal directly with the Board or filing a motion to reconsider
with the Immigration Judge. While both options provide 30 days to file that
challenge, there are, of course, tactical differences between them. Calculations
of success, the opportunity for administrative review, and the desirability of an
automatic stay are considerations, among others, that a party might weigh in

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choosing one course of action over the other. The decision to file a motion or
a direct appeal is a question of litigation strategy that we leave to the discretion
of the filing party. Parties should be mindful, however, that the Board does not
ordinarily entertain new evidence on appeal. See, e.g., Matter of Soriano,

 (BIA 1988).
   In this particular instance, the respondent filed a motion with the Immigration
Judge. That motion would have been timely had it not been rejected by the
Immigration Court. We therefore find that the Immigration Judge did have
jurisdiction to entertain the respondent’s motion and that it was improper for the
Immigration Court to reject it on this basis. Consequently, we will rectify this
procedural defect by returning the respondent’s case to the Immigration Judge
with instructions to provide the respondent 30 days to file her motion to
reconsider and, should she do so, to adjudicate that motion.
   As our remedy is procedural in nature, we do not reach the respondent’s
assertions regarding the validity of her appeal waiver or her claim of ineffective
assistance of counsel.
   ORDER: The appeal is sustained.
   FURTHER ORDER: The record is remanded to the Immigration Court
for the purpose stated in the foregoing opinion.

CONCURRING OPINION: Lory Diana Rosenberg, Board Member
  I respectfully concur without opinion.




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