Adekoya v. Holder , 516 F. App'x 65 ( 2013 )

10-993(L)
Adekoya v. Holder
BIA
Page, IJ
A097 513 560
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR
AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 28th day of March, two thousand thirteen.
PRESENT:
JOSEPH M. McLAUGHLIN,
BARRINGTON D. PARKER,
PETER W. HALL,
Circuit Judges.
________________________________________
PRINCE KAYODE ADEKOYA, AKA PRINCE A.Z.K.
ADEKOYA, II,
Petitioner,
v. 10-993(L);
10-4585(Con)
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_________________________________________
FOR PETITIONER: Prince Kayode Adekoya, pro se,
Batavia, NY
FOR RESPONDENT: Tony West, Assistant Attorney
General; Ahn-Thu P. Mai-Windle,
Senior Litigation Counsel; Kathryn
M. McKinney, Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of these petitions for review of
decisions of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED that the petition for
review in 10-993 is DENIED and the petition for review in
10-4585 is GRANTED, and that matter is REMANDED to the BIA
for further proceedings.
Petitioner Prince Kayode Adekoya, a native and citizen
of Nigeria, seeks review of a February 18, 2010, order of
the BIA, finding that it lacked jurisdiction to review the
September 4, 2009, order of Immigration Judge (“IJ”) Alan L.
Page, ordering Adekoya removed and noting the withdrawal of
his application for asylum, withholding of removal, and
relief under the Convention Against torture (“CAT”), In re
Prince Kayode Adekoya, No. A097 513 560 (B.I.A. Feb. 18,
2010), aff’g No. A097 513 560 (Immig. Ct. N.Y. City Sept. 4,
2009), and an October 8, 2010 decision of the BIA denying a
motion to reopen for lack of jurisdiction, In re Prince
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Kayode Adekoya, No. A097 513 560 (B.I.A. Oct. 8, 2010). We
assume the parties’ familiarity with the underlying facts
and procedural history in this case.
We review de novo questions of law and constitutional
claims. See Pierre v. Gonzales, 588 F.3d 767, 772 (2d Cir.
2009).
I. February 2010 BIA Decision, Docket No. 10-993 (L)
In October 2010, the BIA found that it lacked
jurisdiction to review the IJ’s decision because Adekoya had
withdrawn his asylum application and waived his right to
appeal the IJ’s decision. Adekoya challenges this
determination, arguing that he did not knowingly and
intelligently waive his right to appeal and that to the
extent his attorney waived this right on his behalf, it was
without his consent. We have previously recognized that,
“[a]sking the parties whether they accept a decision as
‘final’ is a shorthand expression commonly used by
Immigration Judges . . . refer[ing] to the language of
8 C.F.R. § 1003.39, which provides for finality of the
Immigration Judge’s decision upon waiver of the right to
appeal.” Ali v. Mukasey, 525 F.3d 171, 173 (2d Cir. 2008).
We have further held that “[t]hose who understand the
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meaning of that shorthand expression, such as aliens
represented by attorneys . . . may effectively waive appeal
in response to this simple question.” Id. Because the
record indicates that Adekoya requested the withdrawal of
his asylum application, and further reflects that Adekoya’s
counsel accepted the resulting order of removal as “final,”
Adekoya voluntarily and knowingly waived his right to
appeal. See Ali, 525 F.3d at 174; see also Hoodho v.
Holder, 558 F.3d 184, 192-93 (2d Cir. 2009) (aliens are
bound by concessions made by freely retained counsel). The
petition in this matter is, therefore, denied.
II. October 2010 BIA Decision, Docket No. 10-4584 (Con)*
Adekoya requests that we resolve the jurisdictional
dispute between the IJ, who rejected his motion to reopen
for lack of jurisdiction and instructed him to file it with
the BIA, and the subsequent decision of the BIA denying his
motion on jurisdictional grounds because the motion should
have been filed with the IJ. A motion to reopen is filed
with the immigration court “unless jurisdiction is vested
*
Because Adekoya is detained and the envelope in which
he sent his petition for review indicates that it was mailed
within the 30-day filing period, Adekoya’s petition for
review of the October 2010 BIA order is timely. See Arango-
Aradondo v. INS, 13 F.3d 610, 612 (2d Cir. 1994).
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with the Board of Immigration Appeals.” 8 C.F.R.
§ 1003.23(b). Because Adekoya waived his right to appeal
the IJ’s decision, he, in turn, lost his right to appeal
that decision to the BIA. See 8 U.S.C. § 1003.3(a)(1). The
BIA, therefore, rightly rejected Adekoya’s motion to reopen
for lack of jurisdiction because jurisdiction never vested
in the BIA. However, in rejecting Adekoya’s motion on
jurisdictional grounds, the BIA noted that the IJ also had
rejected the motion on jurisdictional grounds. The BIA,
however, failed to transfer the motion back to the IJ,
explain to Adekoya where or how he should have filed his
motion, or explain why neither the IJ nor the BIA had
jurisdiction. Given Adekoya’s pro se status and the lack of
clarity and inconsistency in the agency’s jurisdictional
rulings, we grant this petition and remand to the BIA so it
may further address the jurisdictional issue regarding the
filing of the motion to reopen.
For the foregoing reasons, the petition for review in
10-993 is DENIED and the petition in 10-4585 is GRANTED, and
the matter is REMANDED to the BIA for further proceedings.
As we have completed our review, the pending motions for
stay of removal are DISMISSED as moot. Any pending request
for oral argument is DENIED in accordance with Federal Rule
5
of Appellate Procedure 34(a)(2), and Second Circuit Local
Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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