“Knowing-and-Voluntary” Appeal Waivers in Immigration Proceedings: The Tenth Circuit’s Clarification in Saleem v. Garland

Introduction

On 26 June 2025, the United States Court of Appeals for the Tenth Circuit delivered its unpublished but citable order and judgment in Saleem v. Garland, Nos. 23-9568 & 24-9546. The decision resolves consolidated petitions for review filed by Kamran Saleem, a Pakistani–Brazilian dual national who, while detained, waived his right to appeal an Immigration Judge’s removal order and then attempted to overturn that waiver before the Board of Immigration Appeals (BIA) and the Tenth Circuit.

The court used the case to articulate—explicitly for the first time in a published or unpublished precedential sense—the governing test in this circuit for assessing the validity of an appellate waiver before the BIA: the waiver must be “knowing and voluntary.” Finding no evidence of linguistic misunderstanding or coercion, the panel held that the waiver stripped the BIA of jurisdiction; consequently, both the underlying appeal and a subsequent motion for reconsideration were properly dismissed. The petitions for review were denied.

Summary of the Judgment

• Jurisdiction: 8 U.S.C. § 1252(a)(1); consolidated under § 1252(b)(6).
• Holding 1 (No. 23-9568): The BIA correctly dismissed Saleem’s appeal for lack of jurisdiction because his waiver of appellate rights was knowing and voluntary.
• Holding 2 (No. 24-9546): The BIA did not abuse its discretion in denying Saleem’s motion to reconsider; the motion offered no legal or factual error in the prior dismissal and attempted to raise new arguments (detention-condition coercion) outside the reconsideration framework.
• Outcome: Both petitions for review denied.

Detailed Analysis

A. Precedents Cited and Their Influence

The court leaned on a constellation of authorities spanning Supreme Court precedent, BIA decisions, and circuit-level case law:

1. Stone v. INS, 514 U.S. 386 (1995)
   Confirmed that a BIA dismissal and a subsequent denial of reconsideration are two separate, final orders reviewable in distinct petitions. Allowed consolidation of Saleem’s petitions.
2. Mendoza-Lopez, 481 U.S. 828 (1987)
   Recognized due-process limits on unreviewable deportation orders when waivers are not “considered or intelligent.” Though later superseded in part legislatively, it remains foundational for waiver validity.
3. In re Rodriguez-Diaz, 22 I.&N. Dec. 1320 (BIA 2000)
   Adopted the “knowing and intelligent” standard inside the administrative immigration system. The Tenth Circuit embraced this line, citing Rodriguez-Diaz and harmonizing with other circuits.
4. Out-of-Circuit Guidance
   Kohwarien v. Holder, 635 F.3d 174 (5th Cir. 2011); Ali v. Mukasey, 525 F.3d 171 (2d Cir. 2008). Both decisions held that a valid waiver removes BIA jurisdiction—directly mirrored by the Tenth Circuit.
5. Tenth Circuit Unpublished Cases
   Arriago-Alvarado v. Holder, 483 F. App’x 520 (10th Cir. 2012); Palacios-Yanez v. Holder, 480 F. App’x 474 (10th Cir. 2012). Previously referenced “knowing and voluntary” waivers but without a binding statement; Saleem crystallises their persuasive effect.
6. Other doctrinal pillars: Miguel-Peña v. Garland, 94 F.4th 1145 (10th Cir. 2024) (substantial-evidence review); Berdiev v. Garland, 13 F.4th 1125 (10th Cir. 2021) (abuse-of-discretion standard for reconsideration).

B. Legal Reasoning of the Court

1. Adoption of the Test. Noting the absence of a published Tenth-Circuit standard, the panel surveyed persuasive authorities and expressly adopted the “knowing and voluntary” test for appeal waivers in removal proceedings.
2. Fact-Intensive Inquiry. Applying that test, the court combed the record for indicia of comprehension or coercion. Key factual anchors:
   • Saleem twice affirmed Urdu was his “best language.”
   • The IJ explained the consequences of waiver two separate times, expressly stating it was irrevocable.
   • Saleem’s responses (“Nobody trusts me … what’s the point”) reflected frustration, not confusion.
   This evidence, the panel said, precluded any reasonable fact-finder from concluding the waiver was unknowing.
3. Linguistic Concerns Rejected. Allegations that the interpreter used Hindi/Punjabi were undeveloped; the record lacked any objection during the hearing, and Saleem himself anchored the language choice.
4. Detention-Condition Coercion. The coercion theory was procedurally defaulted—raised late, unsupported by record citations, and outside the permissible scope of a motion to reconsider under Matter of O-S-G-, 24 I.&N. Dec. 56 (BIA 2006).
5. BIA Reconsideration Review. The BIA sufficiently explained its reasoning; it is not obligated to produce an “exegesis.” Therefore, no abuse of discretion.

C. Anticipated Impact of the Decision

• Binding within the Circuit (Persuasive Elsewhere). Although formally an “order and judgment” (non-precedential under 10th Cir. R. 32.1(G)), Saleem will carry persuasive weight and guide immigration courts in Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming until a published opinion or en banc decision appears.
• Clarity for IJs and BIA. IJs must build a clear record demonstrating explanation of appeal rights; Saleem offers a model colloquy and signals that two explicit advisements are more than adequate.
• Strategic Advice for Practitioners. Counsel representing detained noncitizens must object contemporaneously to language or coercion issues. Post-hearing affidavits alone are unlikely to succeed.
• Systemic Efficiency. By confirming that a valid waiver strips the BIA of jurisdiction, the ruling limits late-stage appeals and may conserve administrative resources.

Complex Concepts Simplified

Knowing and Voluntary Waiver

A legal relinquishment of rights made with full understanding (knowing) and without undue pressure or coercion (voluntary). If valid, it finalises the IJ’s order instantly.

BIA Jurisdiction

The BIA can review an IJ’s decision only if the non-citizen reserves the right to appeal. A valid waiver deprives the BIA of power to hear the case.

Motion to Reconsider vs. Motion to Reopen

Reconsider: Argues the BIA’s prior decision contained an error of law or fact, using the existing record.
Reopen: Brings new evidence or changed circumstances. Saleem’s coercion argument more closely resembled a reopen theory but was styled (and time-barred) as reconsider.

Substantial-Evidence Standard

The reviewing court will affirm factual findings unless the record compels a contrary conclusion—an extremely deferential test.

Abuse of Discretion

Focuses on whether the agency acted arbitrarily, irrationally, or contrary to law; it does not permit the court to re-weigh evidence.

Conclusion

Saleem v. Garland cements the “knowing-and-voluntary” benchmark for appeal waivers in the Tenth Circuit’s immigration jurisprudence. By meticulously parsing the record, the court underscored that language accommodations, procedural advisements, and the detainee’s own statements collectively inform waiver validity. The decision offers concrete guidance:

• Immigration judges must make a clear, on-the-record waiver colloquy.
• Detainees and counsel must voice objections contemporaneously or risk forfeiture.
• Motions to reconsider are confined to errors in the existing record; new coercion or conditions-of-confinement allegations demand reopening, not reconsideration.

In the broader landscape, Saleem enhances procedural certainty, balances administrative efficiency against due-process safeguards, and aligns the Tenth Circuit with sister circuits on a pivotal jurisdictional question. Future litigants challenging waiver validity within the circuit will now confront a clarified, uniform, and demanding standard.