Tenth Circuit Adopts the “Knowing-and-Voluntary” Standard for Appeal Waivers before the BIA
Comprehensive Commentary on Saleem v. Garland, No. 23-9568 & 24-9546 (10th Cir. Jun. 26, 2025)

1. Introduction

Saleem v. Garland presented the Tenth Circuit with a procedural question of first impression: What standard governs judicial review of a non-citizen’s waiver of the right to appeal an Immigration Judge’s (IJ) removal order? Mr. Kamran Saleem, a Pakistani-born naturalised Brazilian, entered the United States without valid documents in 2022. After losing his asylum and withholding claims before an IJ—and explicitly waiving appeal—he nevertheless filed an appeal to the Board of Immigration Appeals (BIA). The BIA dismissed for lack of jurisdiction and later denied reconsideration. Saleem petitioned the Tenth Circuit, alleging his waiver was vitiated by faulty interpretation and coercive detention conditions.

The consolidated petitions required the court to settle two pivotal issues:

• Whether the Tenth Circuit would formally adopt a “knowing and voluntary” (or similar) test to assess the validity of appellate waivers before the BIA.
• Whether, on the factual record, Saleem’s waiver met that standard, and if not, whether the BIA abused its discretion in refusing to reopen or reconsider.

The court denied both petitions, thereby establishing a binding circuit precedent on the governing standard and clarifying the evidentiary showing necessary to invalidate a waiver.

2. Summary of the Judgment

Key holdings:

1. Adoption of standard. Drawing on persuasive authorities from other circuits and its own unpublished decisions, the Tenth Circuit held that the BIA “lacks jurisdiction to review an IJ’s decision if a non-citizen has knowingly and voluntarily waived his right to appeal.”
2. Application to Saleem. Substantial evidence supported the IJ’s finding that Saleem’s preferred language was Urdu and that the waiver was given knowingly and voluntarily; the record did not compel a contrary conclusion.
3. Coercion argument rejected. Alleged coercion from detention conditions was not raised before the BIA with particularity and, even if considered, lacked evidentiary support.
4. No abuse of discretion. The BIA provided a rational explanation for denying reconsideration; Saleem’s new affidavits created inconsistencies but did not show legal or factual error in the prior order.

3. Analysis

3.1 Precedents Cited and Their Influence

• Stone v. INS, 514 U.S. 386 (1995) – Reaffirmed that separate petitions lie from a BIA dismissal and a denial of reconsideration, allowing consolidation.
• In re Rodriguez-Diaz, 22 I. & N. Dec. 1320 (BIA 2000) – BIA precedent requiring waivers to be “knowing and intelligent.” Provided the doctrinal springboard for federal circuits.
• United States v. Mendoza-Lopez, 481 U.S. 828 (1987) – Constitutional underpinning that removal orders entered without meaningful judicial review cannot serve as predicates for criminal prosecution; emphasized the need for genuinely informed waivers.
• Kohwarien v. Holder, 635 F.3d 174 (5th Cir. 2011) & Ali v. Mukasey, 525 F.3d 171 (2d Cir. 2008) – Sister-circuit cases expressly adopting the “knowing and voluntary” formulation; the Tenth Circuit treats them as persuasive authority.
• Unpublished Tenth Circuit cases – Arriago-Alvarado v. Holder, 483 F. App’x 520 (2012) and Palacios-Yanez v. Holder, 480 F. App’x 474 (2012) — indicated the same standard but lacked precedential force; Saleem crystallises it.
• Maatougui v. Holder, 738 F.3d 1230 (10th Cir. 2013) – Cited for the proposition that the BIA need not write an “exegesis” when explaining its decisions; sufficiency of reasoning review.
• Matter of O-S-G-, 24 I. & N. Dec. 56 (BIA 2006) – Distinguished between motions to reconsider (legal error on the existing record) and motions to reopen (new evidence); guided the court in affirming denial of reconsideration.

3.2 The Court’s Legal Reasoning

a) Selection of the Standard. The panel observed the absence of a published Tenth Circuit rule. It surveyed nationwide practice and concluded uniformity and predictability favoured express adoption of “knowing and voluntary,” mirroring criminal-plea jurisprudence but tailored to immigration.

b) Factual Application. Applying substantial-evidence review, the court highlighted:

• Saleem’s own statements—during credible-fear interview and both hearings—that Urdu was his “best” and “first” language.
• Repeated, unequivocal confirmation that he understood the IJ’s explanation that waiver was irrevocable.
• The absence of objections or requests for Pashto interpretation, and the IJ’s caution to alert the bench if there were any misunderstanding.
• Context of the waiver: frustration over credibility findings, not misapprehension of legal consequences.

c) Rejection of Coercion Theory. The court deemed the allegation unexhausted and unsupported. Motions to reconsider are confined to the existing record; Saleem’s new affidavit arrived late and conflicted with earlier statements.

d) Procedural Adequacy. The BIA’s brief order satisfied the requirement of reasoned decision-making; citation to record pages and relevant authority demonstrated “hearing and thinking,” distinguishing it from perfunctory dispositions.

3.3 Likely Impact

1. Binding Precedent. District courts and immigration judges within the Tenth Circuit now have an authoritative, published benchmark: appellate waivers stand unless the non-citizen proves they were not made knowingly and voluntarily.
2. Allocation of Proof. The opinion implicitly places the evidentiary burden on the non-citizen to produce compelling evidence—especially contemporaneous record evidence—of misunderstanding or coercion.
3. Language-access Litigation. While Saleem lost, the case underscores the importance of building a robust record (requests for different interpreters, contemporaneous objections) when linguistic adequacy is at issue.
4. Detention-condition Claims. The court signalled scepticism toward coercion arguments not raised promptly. Future litigants will need to preserve such claims before the IJ and BIA to secure review.
5. Procedural Efficiencies. By clarifying that an IJ-accepted waiver strips the BIA of jurisdiction, the decision discourages “bad-faith” appeals filed after explicit waivers, conserving adjudicatory resources.

4. Complex Concepts Simplified

• Waiver of Appeal: A formal statement by the non-citizen relinquishing the statutory right to have the BIA review the IJ’s decision. Once accepted by the IJ, it is ordinarily irrevocable.
• Knowing and Voluntary: The person must (1) understand the nature and consequences of the waiver (knowing) and (2) exercise free will, free of undue pressure or coercion (voluntary).
• BIA Jurisdiction: The BIA can only review IJ decisions if the non-citizen timely reserves and perfects an appeal; a valid waiver removes that power.
• Motion to Reconsider vs. Motion to Reopen: Reconsider asks the BIA to re-examine its decision for legal or factual error based on the same record; reopen introduces new evidence/events.
• Substantial-Evidence Standard: The appellate court defers to administrative fact-finding unless the record compels a contrary conclusion.

5. Conclusion

Saleem v. Garland fills a doctrinal gap in the Tenth Circuit by squarely adopting the “knowing-and-voluntary” test for appellate waivers before the BIA. Applying that yardstick, the court affirmed that Saleem’s waiver—made through an interpreter in his self-identified best language, with repeated judicial warnings, and absent timely objections—was valid. The ruling carries tangible consequences: non-citizens (and their counsel) must lodge any linguistic or coercion concerns on the record, in real time, or face near-certain dismissal of later appeals. Administratively, the decision promotes finality and efficiency, while reinforcing the judiciary’s insistence that waiver must be both informed and uncoerced.

Going forward, immigration practitioners in the Tenth Circuit should (1) meticulously document any interpretation difficulties; (2) advise clients that once an appeal is waived, the door is effectively closed; and (3) frame detention-condition or coercion arguments before the IJ to preserve them for appellate review. Courts, for their part, will likely scrutinise waivers through the lens articulated here—demanding clarity on the record but according heavy deference to the IJ’s contemporaneous findings.