Vicente Martinez-Martinez v. Eric Holder, Jr.

Filing

PUBLISHED OPINION FILED. [13-60425 Affirmed ] Judge: WED , Judge: JES , Judge: EBC Mandate pull date is 12/08/2014 [13-60425]

Case: 13-60425

Document: 00512803575

Page: 1

Date Filed: 10/15/2014

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

FILED
No. 13-60425

October 15, 2014
Lyle W. Cayce
Clerk

VICENTE MARTINEZ-MARTINEZ, also known as Vincente Martinez, also
known as Francisco Javier Garcia,
Petitioner

v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of
the Board of Immigration Appeals

Before DAVIS, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:
Vicente Martinez-Martinez (“Martinez”) petitions for review of an order
of the Board of Immigration Appeals (“BIA”) dismissing his appeal on the
grounds that Martinez had knowingly and intelligently waived his appellate
rights before the immigration judge (“IJ”) at his initial hearing. We deny the
petition for review.
Martinez is a citizen of El Salvador who entered the U.S. unlawfully in
2004. He appeared at a group hearing before an IJ in 2012. There, the IJ
advised Martinez and the other respondents of their rights. Regarding their
appellate rights, he stated, “[a]fter I tell you my decision, I’m going to ask

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whether you accept the decision or want to appeal. If you accept the decision,
it will be final today. If you appeal, you will have 30 days to file your appeal
with the Board of Immigration Appeals.” Thereafter, the IJ addressed
Martinez individually, in pertinent part as follows:
Judge:
Sir, do you agree that you are subject to deportation under
Section 212(a)(6)(A)(i) as an alien who is in the United States
without permission?
Martinez:
Yes.
Judge:
I will sustain that charge. If you have to be deported, which
country do you choose?
Martinez:
El Salvador.
Judge:
Do you want to apply for any of the forms of relief that I
explained before?
Martinez:
No.
Judge:
Do you fear persecution or torture if removed to El Salvador?
Martinez:
No.
Judge:
Okay, it is the Court’s decision then, sir, that you be removed
from the United States to El Salvador on the 212(a)(6)(A)(i)
charge contained in the Notice to Appear. Do you want to
appeal my decision or do you accept it as final?
Martinez:
Well, I just have a question. Do I have any possibilities for a
bond or anything like that?
Judge:
You need to apply for a form of relief, sir, and you’re not
applying for a form of relief. I don’t see a basis to grant you
bond.
Martinez:
What?
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Judge:
I don’t see a reason to grant you bond.
Martinez:
I’m sorry, I didn’t understand.
Judge:
Okay. Sir, you’re not applying for any form of relief, and you
have a pretty serious conviction.
Martinez:
I just want to know if I can have a bond, yes or no?
Judge:
I’m not going to grant you bond, no.
Martinez:
Okay.
Judge:
Do you want to appeal my decision or do you accept it as
final?
Martinez:
I accept it as final.
The question of whether or not a defendant has knowingly and
intelligently waived his right to appeal is a fact-specific inquiry which we
review under the substantial evidence standard. 1 Under this standard, the
BIA’s finding is conclusive unless, based on the evidence presented in the
record, “any reasonable adjudicator would be compelled to conclude to the
contrary.” 2
Several facts preclude a finding that “no reasonable fact finder” could
reach the same conclusion the BIA has reached. 3 These include the IJ’s verbal
and written explanation of respondents’ appellate rights, Martinez’s negative
Kohwarien v. Holder, 635 F.3d 174, 178-79 (5th Cir. 2011) (citing de Rodriguez v.
Holder, 585 F.3d 227, 233 (5th Cir. 2009)).The substantial evidence standard was established
by the Supreme Court in INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992), and essentially
codified at 8 U.S.C. § 1252(b)(4)(B). See Zhang v. Gonzalez, 432 F.3d 339, 344 (5th Cir. 2005).
2 Kohwarien, 635 F.3d at 176-79.
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3

See id. at 179.

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response to the IJ’s question whether Martinez wanted to apply for relief, the
explanatory responses that the IJ provided to answer Martinez’s questions,
and Martinez’s affirmative statement, “I accept [the IJ’s decision] as final.”
These facts constitute substantial evidence to support the BIA’s finding that
Martinez knowingly and intelligently waived his appellate rights. See our
opinion in Kohwarien v. Holder, which is factually analogous and consistent
with our decision in this case. 4
We conclude that the record amply supports the BIA’s finding that
Martinez knowingly and intelligently waived his appellate rights at his initial
hearing. Accordingly, the petition for review is DENIED.

4

Id. at 175-81.

4