10-993(L)
    Adekoya v. Holder
                                                                                    BIA
                                                                                 Page, IJ
                                                                            A097 513 560
                         UNITED STATES COURT OF APPEALS
                             FOR THE SECOND CIRCUIT

                               SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR
AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Thurgood Marshall United
    States Courthouse, 40 Foley Square, in the City of New York,
    on the 28th day of March, two thousand thirteen.

    PRESENT:
             JOSEPH M. McLAUGHLIN,
             BARRINGTON D. PARKER,
             PETER W. HALL,
                  Circuit Judges.
    ________________________________________

    PRINCE KAYODE ADEKOYA, AKA PRINCE A.Z.K.
    ADEKOYA, II,
             Petitioner,

                        v.                                  10-993(L);
                                                            10-4585(Con)
                                                            NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _________________________________________

    FOR PETITIONER:                Prince Kayode Adekoya, pro se,
                                   Batavia, NY

    FOR RESPONDENT:                Tony West, Assistant Attorney
                                   General; Ahn-Thu P. Mai-Windle,
                       Senior Litigation Counsel; Kathryn
                       M. McKinney, Attorney, Office of
                       Immigration Litigation, United
                       States Department of Justice,
                       Washington, D.C.




    UPON DUE CONSIDERATION of these petitions for review of

decisions of the Board of Immigration Appeals (“BIA”), it is

hereby ORDERED, ADJUDGED, AND DECREED that the petition for

review in 10-993 is DENIED and the petition for review in

10-4585 is GRANTED, and that matter is REMANDED to the BIA

for further proceedings.

    Petitioner Prince Kayode Adekoya, a native and citizen

of Nigeria, seeks review of a February 18, 2010, order of

the BIA, finding that it lacked jurisdiction to review the

September 4, 2009, order of Immigration Judge (“IJ”) Alan L.

Page, ordering Adekoya removed and noting the withdrawal of

his application for asylum, withholding of removal, and

relief under the Convention Against torture (“CAT”), In re

Prince Kayode Adekoya, No. A097 513 560 (B.I.A. Feb. 18,

2010), aff’g No. A097 513 560 (Immig. Ct. N.Y. City Sept. 4,

2009), and an October 8, 2010 decision of the BIA denying a

motion to reopen for lack of jurisdiction, In re Prince


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Kayode Adekoya, No. A097 513 560 (B.I.A. Oct. 8, 2010).      We

assume the parties’ familiarity with the underlying facts

and procedural history in this case.

     We review de novo questions of law and constitutional

claims.    See Pierre v. Gonzales, 

, 772 (2d Cir.

2009).

I.   February 2010 BIA Decision, Docket No. 10-993 (L)

     In October 2010, the BIA found that it lacked

jurisdiction to review the IJ’s decision because Adekoya had

withdrawn his asylum application and waived his right to

appeal the IJ’s decision.   Adekoya challenges this

determination, arguing that he did not knowingly and

intelligently waive his right to appeal and that to the

extent his attorney waived this right on his behalf, it was

without his consent.   We have previously recognized that,

“[a]sking the parties whether they accept a decision as

‘final’ is a shorthand expression commonly used by

Immigration Judges . . . refer[ing] to the language of

8 C.F.R. § 1003.39, which provides for finality of the

Immigration Judge’s decision upon waiver of the right to

appeal.”    Ali v. Mukasey, 

, 173 (2d Cir. 2008).

We have further held that “[t]hose who understand the


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meaning of that shorthand expression, such as aliens

represented by attorneys . . . may effectively waive appeal

in response to this simple question.”   Id.   Because the

record indicates that Adekoya requested the withdrawal of

his asylum application, and further reflects that Adekoya’s

counsel accepted the resulting order of removal as “final,”

Adekoya voluntarily and knowingly waived his right to

appeal.   See Ali, 525 F.3d at 174; see also Hoodho v.

Holder, 

, 192-93 (2d Cir. 2009) (aliens are

bound by concessions made by freely retained counsel).      The

petition in this matter is, therefore, denied.

II. October 2010 BIA Decision, Docket No. 10-4584 (Con)*

    Adekoya requests that we resolve the jurisdictional

dispute between the IJ, who rejected his motion to reopen

for lack of jurisdiction and instructed him to file it with

the BIA, and the subsequent decision of the BIA denying his

motion on jurisdictional grounds because the motion should

have been filed with the IJ.   A motion to reopen is filed

with the immigration court “unless jurisdiction is vested


    *
      Because Adekoya is detained and the envelope in which
he sent his petition for review indicates that it was mailed
within the 30-day filing period, Adekoya’s petition for
review of the October 2010 BIA order is timely. See Arango-
Aradondo v. INS, 

, 612 (2d Cir. 1994).
                               4
with the Board of Immigration Appeals.”     8 C.F.R.

§ 1003.23(b).     Because Adekoya waived his right to appeal

the IJ’s decision, he, in turn, lost his right to appeal

that decision to the BIA.     See 8 U.S.C. § 1003.3(a)(1).     The

BIA, therefore, rightly rejected Adekoya’s motion to reopen

for lack of jurisdiction because jurisdiction never vested

in the BIA.     However, in rejecting Adekoya’s motion on

jurisdictional grounds, the BIA noted that the IJ also had

rejected the motion on jurisdictional grounds.     The BIA,

however, failed to transfer the motion back to the IJ,

explain to Adekoya where or how he should have filed his

motion, or explain why neither the IJ nor the BIA had

jurisdiction.     Given Adekoya’s pro se status and the lack of

clarity and inconsistency in the agency’s jurisdictional

rulings, we grant this petition and remand to the BIA so it

may further address the jurisdictional issue regarding the

filing of the motion to reopen.

    For the foregoing reasons, the petition for review in

10-993 is DENIED and the petition in 10-4585 is GRANTED, and

the matter is REMANDED to the BIA for further proceedings.

As we have completed our review, the pending motions for

stay of removal are DISMISSED as moot.     Any pending request

for oral argument is DENIED in accordance with Federal Rule
                                5
of Appellate Procedure 34(a)(2), and Second Circuit Local

Rule 34.1(b).

                           FOR THE COURT:
                           Catherine O’Hagan Wolfe, Clerk




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