Maria Opico-Alfaro v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 10, 2020
• Docket: 18-70761
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 10 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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.