Establishing the “Knowing and Voluntary” Standard for Appeal Waivers in Immigration Proceedings – A Commentary on Saleem v. Garland (10th Cir. 2025)

1. Introduction

In Saleem v. Garland, the United States Court of Appeals for the Tenth Circuit confronted a recurrent but under-theorised question in removal litigation: under what circumstances does a non-citizen’s oral waiver of the right to appeal an Immigration Judge’s (IJ) removal order divest the Board of Immigration Appeals (BIA) – and consequently the federal courts – of appellate jurisdiction?

Mr. Kamran Saleem, a Pakistani-born naturalised citizen of Brazil, challenged two BIA decisions that (i) dismissed his appeal for want of jurisdiction on the ground that he had waived his appellate rights during the IJ hearing, and (ii) denied his motion for reconsideration. He asserted that language-access deficiencies and coercive detention conditions rendered his waiver invalid. The Tenth Circuit, exercising jurisdiction under 8 U.S.C. § 1252(a)(1), rejected those arguments and, significantly, adopted – for the first time in a published immigration case – the “knowing and voluntary” standard for reviewing appeal waivers.

2. Summary of the Judgment

The Court (Phillips, Baldock, & Rossman, JJ.) issued a unanimous, non-precedential order and judgment that:

Affirmed the BIA’s dismissal of Saleem’s appeal, holding that he knowingly and voluntarily waived his right to appeal, thereby stripping the BIA of jurisdiction.
Affirmed the BIA’s denial of his motion to reconsider, determining that the Board did not abuse its discretion in concluding that (a) the record showed adequate Urdu interpretation, (b) Saleem expressed clear understanding of the permanent nature of his waiver, and (c) the newly-raised “coercion” theory was procedurally defaulted and unsupported.

Although labelled “not binding precedent” under 10th Cir. R. 32.1(G), the opinion is likely to carry persuasive authority because it fills a doctrinal gap in Tenth Circuit immigration jurisprudence and aligns the circuit with other courts that have explicitly adopted a similar test.

3. Analysis

3.1 Precedents Cited

In re Rodriguez-Diaz, 22 I.&N. Dec. 1320 (BIA 2000) – foundational BIA decision that waivers must be “knowing and intelligent,” drawing on United States v. Mendoza-Lopez. Provided the conceptual template for the Tenth Circuit’s formulation.
Kohwarien v. Holder, 635 F.3d 174 (5th Cir. 2011) – Fifth Circuit precedent stating that the BIA lacks jurisdiction if the waiver was “knowing and voluntary.” The Tenth Circuit found this persuasive authority.
Ali v. Mukasey, 525 F.3d 171 (2d Cir. 2008) – Applied a “knowing and voluntary” standard and emphasised a fact-specific inquiry focusing on the colloquy between IJ and respondent.
Unpublished Tenth Circuit decisions: Arriago-Alvarado v. Holder, 483 F. App’x 520 (2012); Palacios-Yanez v. Holder, 480 F. App’x 474 (2012) – previously hinted at the “knowing and voluntary” test but lacked precedential weight.
Standards for judicial review & motions: Stone v. INS, 514 U.S. 386 (1995) (separate review of motion to reconsider); Berdiev v. Garland, 13 F.4th 1125 (10th Cir. 2021) (abuse-of-discretion standard for reconsideration).

By weaving these authorities together, the Court closed the doctrinal gap within its own circuit and harmonised its approach with sister circuits.

3.2 Legal Reasoning

Adoption of the Standard. Noting the absence of a binding Tenth Circuit standard, the panel surveyed persuasive authority and adopted the “knowing and voluntary” (sometimes “knowing and intelligent”) framework. The Court treated the standard as primarily factual, reviewed under the substantial-evidence test.
Factual Application. The Court examined:
- Saleem’s repeated affirmation, on the record, that Urdu was his “best language” and that he understood the IJ’s advisals.
- The IJ’s unequivocal warnings – given twice – that waiver was irrevocable.
- The context of Saleem’s statements: frustration over credibility findings rather than linguistic confusion.
These factors collectively supported the finding that the waiver was valid.
Rejection of Language and Coercion Arguments.
- The language claim lacked evidentiary support; Saleem never objected to Urdu interpretation at hearing and inconsistently alleged Hindi use on appeal.
- The coercion theory was unexhausted and factually unsupported; the panel emphasised that new factual allegations cannot be smuggled into a motion to reconsider without first presenting them to the IJ or in a motion to reopen.
Denial of Reconsideration. Applying the abuse-of-discretion standard, the Court found the BIA’s reasoning adequate. The Board cited the proper legal framework (Matter of O-S-G-) and explained why the newly submitted affidavit did not compel a different result.

3.3 Impact

This decision is poised to influence Tenth-Circuit immigration practice in several ways:

Clear Guidance for IJs. Immigration Judges within the circuit now have explicit appellate confirmation that a waiver colloquy must create a record showing the waiver is knowing and voluntary; meticulous advisals and interpreter verification are essential.
Strategic Calculus for Respondents & Counsel. Non-citizens contemplating pro se waiver must understand that once they relinquish the appeal, neither the BIA nor the court will likely have jurisdiction, absent exceptional circumstances (e.g., demonstrable interpreter malfunction).
Litigation Efficiency. By aligning with other circuits, the ruling reduces forum shopping and encourages uniform BIA practice nationwide.
Evidentiary Expectations for Motions. The decision distinguishes between motions to reconsider (legal/factual errors apparent on the existing record) and motions to reopen (new evidence). Practitioners must choose the correct procedural vehicle when alleging coercion or detention-condition claims.

4. Complex Concepts Simplified

Appeal Waiver. At the end of a removal hearing, a respondent can either reserve (keep) or waive (give up) the right to appeal the IJ’s decision to the BIA. A waiver, once accepted, is generally irrevocable.
Knowing and Voluntary/Intelligent. Borrowed from constitutional doctrine on guilty pleas, this phrase means the respondent understood the nature and consequences of the waiver and was not coerced.
BIA Jurisdiction. The Board can only review an IJ decision if a timely appeal is perfected. A valid waiver eliminates its power to act.
Motion to Reconsider vs. Motion to Reopen.
- Reconsider – challenges the legal correctness of the prior decision using the same evidentiary record.
- Reopen – introduces new, previously unavailable evidence and often requires meeting a numerical/time limitation or special exceptions.
Substantial-Evidence Standard. Appellate courts will not disturb an agency’s factual finding unless the evidence compels a contrary conclusion – an intentionally high bar.

5. Conclusion

Saleem v. Garland cements the “knowing and voluntary” standard as the Tenth Circuit’s benchmark for evaluating appeal waivers in removal proceedings. The Court’s careful factual parsing and its refusal to consider late-raised coercion theories signal a robust commitment to procedural regularity. For immigration practitioners, the case underscores the indispensability of on-the-record clarity during waiver colloquies, the importance of immediate objection to language-access problems, and the strategic perils of conflating reconsideration with reopening. While technically unpublished, the decision’s doctrinal contribution – harmonising Tenth-Circuit law with national consensus – will reverberate across detention centres and immigration courtrooms within the circuit and likely serve as persuasive authority elsewhere.