[D O NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

F O R THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

DEC 15, 2006

N o . 06-11809 THOMAS K. KAHN

CLERK

N o n - A r g u m e n t Calendar

A g en cy No. A90-084-012

A V E L IN O CEJA,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

P etitio n for Review of a Decision of the

B o ard of Immigration Appeals

(D ecem b er 15, 2006)

B efo re TJOFLAT, HULL and FAY, Circuit Judges.

P E R CURIAM:

A v elin o Ceja, a native and citizen of Mexico, and proceeding pro se on ap p eal, petitions this Court for review of the Board of Immigration Appeals' ("B IA ") dismissal of his appeal of the immigration judge's ("IJ") order of removal.

The BIA dismissed Ceja's appeal based upon Ceja's appeal waiver he had made b e f o r e the IJ. The issue before this Court is whether Ceja's appeal waiver was k n o w in g and voluntary. For the reasons set forth more fully below, we deny C eja's petition for review.

C eja entered the United States in May 1985 and adjusted his status to that of la w f u l permanent resident on July 31, 1991. On December 15, 1989, however, C eja was convicted in California for possession of cocaine with the intent to sell.

On August 2, 2005, the Immigration and Naturalization Service ("INS")1 issued C eja a notice to appear ("NTA"), charging him with removability under INA § 237(a)(1)(A), 8U.S.C. § 1227(a)(1)(A) because, at the time Ceja adjusted his s ta tu s , he was within a class of inadmissible aliens, specifically, aliens who had b een convicted of a violation of any law or regulation of a State. On November 1, 2 0 0 5 , Ceja moved the IJ to terminate his removal proceedings or, alternatively, ch an g e the venue to San Francisco, California. In this motion, Ceja argued that his p r o c e e d in g s should have been terminated because he was not actually deportable, o r, in the alternative, that his case should have been moved to California for him to p u rsu e his claim that he was eligible for a waiver of inadmissibility under INA § 212(c), 8U.S.C. § 1182(c) (repealed 1996). The IJ never ruled on this motion.

O n November 15, 2005, Ceja appeared before an IJ for a hearing with regard to his removal proceedings.2 A sworn interpreter translated the hearing from E n g lish to Spanish. Ceja, who was not represented by counsel, admitted that he w as convicted of the above-mentioned offense in December 1989. The IJ found th at, based upon Ceja's admissions, he was removable as charged in the NTA.

Ceja indicated that he did not have a fear of torture or persecution upon his return to Mexico.

The IJ then rendered his oral decision, in which the IJ determined that, b e c au s e Ceja was not eligible to adjust his status at the time he sought such a d ju s tm e n t, he did not properly obtain lawful permanent resident status. The IJ fu rth er found that removability had been established by clear and convincing e v id e n c e , and that Ceja was ineligible for the minimum form of relief, voluntary d ep artu re, because of his 1989 conviction. Thus, the IJ ordered Ceja removed to M ex ico . After the IJ's rendition of its oral decision, the following discussion o ccu rred : IJ: Sir, I've just ordered you deported to Mexico. If you disagree with th is decision, you have a right to appeal or you can accept the order of r e m o v a l.

C eja: How long would it take to appeal? IJ: I will reserve your right to appeal. That appeal will be due D ecem b er 15th, 2005. The Board of Immigration Appeals will im m ed iately review your file and will do their best to have a decision b a c k to you within six months to a year.

C eja: No, I'd rather sign the deportation. How long will it take for me to be sent to Mexico? IJ: Well, since you waived it and it's now a final order, the G o v ern m en t will then move you as soon as possible. You may not rem ain , you may not return to the United States for 20 years.

C eja: That's fine, that's fine. No problem.

I J: And you may not return to the United States without proper d o c u m e n ta tio n .

C e ja : That's fine.

I J: Also because of this drug conviction, it may mean that you may n e v e r be allowed to enter the United States in the future.

C e ja : Doesn't matter, I just want to go back to my house.

IJ: All right.

T h e IJ's written order of removability was entered on November 15, 2005, and in d icated that Ceja waived his right to appeal.

O n November 18, 2005, Ceja filed a notice of appeal to the BIA, arguing, in ter alia, that his waiver of his right to appeal the IJ's order was not voluntary and in tellig en t because he was coerced by the IJ. Ceja also asserted that his waiver of h is right to appeal was especially questionable in light of his motion to terminate h is removal proceedings, which Ceja filed on November 1, 2005 and "the IJ ig n o r e d ." The BIA dismissed Ceja's appeal, finding that Ceja waived his right to ap p eal. Specifically, the BIA found that Ceja's waiver was valid because: (1) the r em o v a l hearing was translated into Spanish for Ceja's benefit; (2) Ceja admitted th a t he had been convicted of possession of cocaine; (3) there was no evidence that th e IJ coerced Ceja to waive his right to appeal by informing Ceja that it could take six months to one year to resolve his appeal; and (4) the IJ made no statement reg ard in g whether Ceja would be detained pending the resolution of his appeal.

The BIA also noted that, despite Ceja's argument that he had submitted a motion in w h ich he argued that he was not subject to removal and that the IJ had not ad d ressed that motion, Ceja did not pursue that motion before the IJ and, f u r th e r m o r e , he admitted that he was convicted of possession of cocaine.

C eja argues on appeal that the BIA and IJ violated his due process rights b ecau se his appeal waiver was not knowing and voluntary. He specifically co n ten d s that the IJ misrepresented the time within which the BIA would conclude an appeal of his case because the IJ told Ceja that it would take approximately six m o n th s to one year, which time-frame is contrary to 8 C.F.R. § 1003.1(e)(8). He asserts that the BIA's finding that the IJ never told Ceja that he would be in c a rc er ate d during an appeal ignores the fact that the IJ previously had denied C eja's motion for bond. He also maintains that his motion to terminate or change v e n u e , in conjunction with the IJ's misrepresentation of the appeal time, estab lish es that his appeal waiver was not knowing and voluntary.

As a threshold matter, we must determine whether we have jurisdiction to e n te rta in Ceja's petition for review. We have no jurisdiction to review a final o rd er of removal if the alien is inadmissible or removable by reason of having co m m itted a violation of a State law. INA § 242(a)(2)(C), 8U.S.C.

§ 1252(a)(2)(C); INA § 212(a)(2), 8U.S.C. § 1182(a)(2). Ceja admitted at his r em o v a l hearing that he was convicted of committing a controlled substance o ffen se. We retain jurisdiction, however, to consider constitutional claims or q u estio n s of law raised in an alien's petition for review. INA § 242(a)(2)(D), 8 U .S .C . § 1252(a)(2)(D); see also Balogun v. United States Attorney Gen., 425 F.3d 1 3 5 6 , 1359 (11th Cir. 2005). Here, Ceja raises a constitutional claim that his ap p eal waiver was not knowing and voluntary, and, thus, his removal hearing v io lated his due process rights. Accordingly, we retain jurisdiction to entertain C e ja 's petition for review to the extent that he challenges the validity of his appeal w a iv e r . We review an alien's constitutional claim de novo. Ali v. United States A tto r n e y Gen., 443 F.3d 804, 808 (11th Cir. 2006).

C o n cern in g an alien's waiver of his right to appeal an IJ's order of removal, th e Supreme Court has determined that, where an appeal waiver is not "considered o r intelligent," the alien's deportation proceeding violates due process. United S tates v. Mendoza-Lopez, 481 U.S. 828, 839-40, 107 S.Ct.2148, 2156, 95 L.Ed.2d 7 7 2 (1987). This Court and the BIA have analyzed aliens' appeal waivers under a k n o w in g and voluntary standard. See United States v. Holland, 876 F.2d 1533, 1 5 3 7 (11th Cir. 1989); In Re Rodriguez-Diaz, 22 I. & N. Dec. 1320, 1322 (BIA 2 0 0 0 ); In Re Patino, 23 I. & N. Dec. 74, 76 (BIA 2001). In light of the Supreme C o u r t's decision in Mendoza-Lopez and the BIA's use of a knowing and voluntary s ta n d a r d , we will review the record to determine whether an alien's appeal waiver w as knowing and voluntary, considered, or intelligent.

B ased upon the record in Ceja's case, the IJ did not coerce Ceja into waiving h is right to appeal. In fact, the IJ initially reserved Ceja's right to appeal and d eem ed the right waived only after Ceja insisted that he would "rather sign the d ep o rtatio n ." Ceja argues on appeal that the IJ misrepresented the time-frame w ith in which an appeal to the BIA would be pending. According to 8 C.F.R. § 1003.1(e)(8), "after completion of the record on appeal . . . the [BIA] . . . shall issu e a decision on the merits as soon as practicable, with a priority for cases or c u s to d y appeals involving detained aliens." The regulation specifically provides th at the BIA "shall dispose of all appeals assigned to a single Board member within 9 0 days of completion of the record on appeal, or within 180 days after an appeal is assig n ed to a three-member panel." 8 C.F.R. § 1003.1(e)(8)(i). However, the reg u latio n makes clear that the above time limit "reflect[s] an internal management d irectiv e in favor of timely dispositions," but does not "create any substantive or p ro ced u ral rights enforceable before any immigration judge or the Board, or in any co u rt of law or equity." 8 C.F.R. § 1003.1(e)(8)(vi). Thus, even though the IJ's resp o n se that the BIA would begin processing Ceja's file "immediately" and would "d o their best to have a decision back to you within six months to a year" was in co n flict with the recommended time limits set forth in the regulation, it was not a m isrep resen tatio n because the time limits are only internal directives and do not n ecessarily represent the reality of the BIA's appeal processing procedures.

To the extent that Ceja argues that his appeal waiver was invalid in light of h is pending motion to terminate his removal proceedings or, alternatively, to ch an g e venue so that he could raise a claim for § 212(c) relief, Ceja's argument is w ith o u t merit. At Ceja's removal hearing, the IJ explicitly asked him whether he h a d been convicted of possession of a controlled substance, and Ceja responded th a t he had. The IJ then informed Ceja that, as a result of his admission, he was rem o v ab le as charged in the NTA. At that point Ceja could have, and arguably sh o u ld have, raised his contention that he was not removable as charged, as he arg u ed in his motion to terminate or change venue. However, Ceja did not contend as such and thus conceded removability. Because he did not challenge his r em o v a b ility before the IJ at his hearing, especially where the IJ had not yet ruled o n his motion, Ceja abandoned his claim that he was not removable as charged. In an y event, his admissions at the hearing were inconsistent with the position that he m a in ta in e d in his motion, and, thus, his motion does not support his argument that h is appeal waiver was invalid.

Accordingly, because the IJ (1) informed Ceja of his right to appeal, (2 ) explained the consequences of the appeal waiver and Ceja's deportation, and (3 ) did not coerce or misinform Ceja regarding the waiver, the BIA did not err in fin d in g that Ceja's appeal waiver was knowing and voluntary. Thus, Ceja's rem o v al proceeding did not violate his due process rights. Ceja's petition for rev iew is DENIED.

1 The Homeland Security Act ("HSA"), effective November 25, 2002, created the Department of Homeland Security ("DHS") and abolished the INS. Pub.L.No. 107-296, 116 Stat. 2135. The HSA transferred INS functions to the DHS. This case was initiated while the INS was still in existence. This memo, therefore, refers to the INS rather than the DHS as the relevant agency.

2 The date listed on the transcript of Ceja's hearing before the IJ is August 2, 2005, which was the date of his notice to appear. However, it appears that the date is a mistake because the IJ's written order of removal was entered on November 15, 2005. Moreover, Ceja and the government indicated in their briefs before the BIA that the date on the transcript was incorrect and that the actual date of the hearing and the court's oral decision was November 15, 2006. This also comports with the IJ's indication during the hearing that any appeal by Ceja would have had to been filed by December 15, 2006, which was 30 days after the day of the hearing.