Maria Opico-Alfaro v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 10 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIA SILVIA OPICO-ALFARO, No. 18-70761
Petitioner, Agency No. A213-081-892
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 6, 2020**
Seattle, Washington
Before: M. SMITH and N.R. SMITH, Circuit Judges, and TUNHEIM,*** District
Judge.
Maria Silvia Opico-Alfaro, a native and citizen of El Salvador, petitions for
review of the Board of Immigration Appeals (BIA) order dismissing her appeal.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable John R. Tunheim, Chief Judge of the United States
District Court for the District of Minnesota, sitting by designation.
The BIA found that Opico-Alfaro had waived her right to appeal and had not
contested the validity of that waiver.
This court lacks jurisdiction over the petition for review of the BIA’s
dismissal of Opico-Alfaro’s appeal. Opico-Alfaro waived her right to appeal in
removal proceedings before the immigration judge. She did not challenge the
validity of that waiver in her appeal before BIA. The waiver of the right to appeal
constitutes a failure to exhaust administrative remedies. Brown v. Holder, 763
F.3d 1141, 1146 (9th Cir. 2014); Barron v. Ashcroft, 358 F.3d 674, 677 (9th Cir.
2004) (holding that the plain text of 8 U.S.C. § 1252(d)(1) “specifically mandates
that the exhaustion of administrative remedies is a prerequisite to our
jurisdiction”). A petitioner may challenge the validity of the waiver before the
BIA, In re Patino, 23 I. & N. Dec. 74, 76 (BIA 2001), but the failure to raise the
issue likewise amounts to a failure to exhaust administrative remedies, Arsdi v.
Holder, 659 F.3d 925, 928–29 (9th Cir. 2011). Because Opico-Alfaro waived her
right to appeal and failed to raise the validity of the waiver before the BIA, she
failed to exhaust administrative remedies, and we are without jurisdiction to hear
the matter.
The petition for review is DISMISSED.
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