Giwe Siki v. Matthew Whitaker

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 18, 2019
• Docket: 18-70938
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 18 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

GIWE PHILIPPE SIKI, AKA Philippe No. 18-70938 Forever, AKA Giwi Philippe Siki, Agency No. A094-746-119 Petitioner,

v. MEMORANDUM*

MATTHEW G. WHITAKER, Acting Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted January 15, 2019**

Before: TROTT, TALLMAN, and CALLAHAN, Circuit Judges.

Giwe Philippe Siki, a native and citizen of the Democratic Republic of

Congo, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”)

order dismissing his appeal from an immigration judge’s (“IJ”) removal order. We

have jurisdiction under 8 U.S.C. § 1252. We review de novo questions of law.

* 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). Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir.2005). We deny the petition

for review.

The BIA did not err in concluding that Siki failed to show that his waiver of

his right to appeal was not knowing and intelligent, where he expressly told the IJ

he wished to waive appeal, and he presented no evidence to support his contention

that he was mentally impaired at his last removal hearing. See Chavez-Garcia v.

Sessions, 871 F.3d 991, 996 (9th Cir. 2017) (“[A]n alien may validly waive his

right to appeal his removal order as long as his waiver is ‘considered’ and

‘intelligent.’” (internal citations omitted)). In reaching this conclusion, we do not

consider the documents that Siki submitted with his opening brief because they

were not part of the administrative record. See 8 U.S.C. § 1252(b)(4)(A) (judicial

review is limited to the administrative record); Dent v. Holder, 627 F.3d 365, 371

(9th Cir. 2010) (stating standard for review of out of record evidence).

To the extent Siki contends his counsel was ineffective, he has not shown

any error in the BIA’s determination, where he failed to include any evidence or

details regarding the alleged ineffective assistance. See Mohammed, 400 F.3d at

794 (petitioner must show that the performance of counsel was so inadequate that

it may have affected the outcome of the proceedings).

We deny Siki’s requests at Docket Entry No. 13 for release from detention

and assistance with housing, because the requests are not properly before the court.

2 18-70938 See, e.g., 8 C.F.R. § 1003.19(d) (consideration of an alien’s application or request

regarding custody or bond “shall be separate and apart from . . . any deportation or

removal hearing or proceeding”); Leonardo v. Crawford, 646 F.3d 1157, 1159 (9th

Cir. 2011) (explaining that an applicant must first raise any continued detention

challenge to the agency, before filing a habeas petition in the district court, which

decision may then be appealed to this court).

PETITION FOR REVIEW DENIED.

3 18-70938