Opinion
No. 05-2734.
Submitted: August 4, 2006.
Filed: August 9, 2006.
Petition for Review of an Order of the Board of Immigration Appeals.
Counsel who represented the petitioner were Herbert A. Igbanugo and Riddhi Jani of Minneapolis, MN.
Counsel who represented the respondent was Andrew J. Lay, AUSA, of St. Louis, MO.
Before MURPHY, BYE, and MELLOY, Circuit Judges.
Liberian citizen Sadou Bah petitions for review of an order of the Board of Immigration Appeals (BIA) finding lack of jurisdiction to entertain Bah's appeal of an Immigration Judge's (IJ's) denial of his motion to reopen removal proceedings. The BIA erroneously found that Bah had failed to argue, in his brief to the BIA, that his appeal waiver was not knowing and intelligent. We thus remand the case to the BIA for it to determine in the first instance the validity of Bah's waiver of his right to administrative appeal. See United States v. Rodriguez, 420 F.3d 831, 834 (8th Cir. 2005) (where waivers of right to appeal were not considered or intelligent, alien was deprived of judicial review of deportation proceeding); Palavra v. INS, 287 F.3d 690, 694 (8th Cir. 2002) (where agency failed to perform its fact-finding function, case was not ripe for appellate review); cf. El-Sheikh v. Ashcroft, 388 F.3d 643, 648 (8th Cir. 2004) (lacking BIA finding as to asylum applicant's credibility and BIA analysis of what material facts central to his claim of past persecution should have been reasonably corroborated, court of appeals had no way of reviewing BIA's actual reasoning).
Accordingly, we grant Bah's petition for review, and we remand to the BIA for a determination as to the validity of Bah's appeal waiver.