Narine v. Holder

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JAI NARINE, 

Petitioner,

v.

 No. 08-1299

ERIC H. HOLDER, JR., Attorney

General,

Respondent.



On Petition for Review of an Order of

the Board of Immigration Appeals.

Argued: January 29, 2009

Decided: March 9, 2009

Before GREGORY and DUNCAN, Circuit Judges,

and Arthur L. ALARCÓN, Senior Circuit Judge of the

United States Court of Appeals for the Ninth Circuit, sitting

by designation.

Petition for review granted; vacated and remanded by pub-

lished opinion. Judge Gregory wrote the opinion, in which

Judge Duncan and Senior Judge Alarcón joined.

COUNSEL

ARGUED: Alexandru Ionut Craciunescu, INTERNA-

TIONAL BUSINESS LAW FIRM, P.C., Washington, D.C.,

2 NARINE v. HOLDER

for Petitioner. Francis William Fraser, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for

Respondent. ON BRIEF: Steffanie J. Lewis, INTERNA-

TIONAL BUSINESS LAW FIRM, P.C., Washington, D.C.,

for Petitioner. Gregory G. Katsas, Assistant Attorney General,

Civil Division, Carl H. McIntyre, Jr., Assistant Director,

Office of Immigration Litigation, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for

Respondent.

OPINION

GREGORY, Circuit Judge:

Petitioner Jai Narine asks this Court to review the Board of

Immigration Appeals’ ("BIA") denial of his motion for recon-

sideration of its decision dismissing his appeal for lack of

jurisdiction. The BIA found that it lacked jurisdiction to con-

sider both Narine’s initial appeal and his motion for reconsid-

eration because he had waived his appellate rights by

accepting voluntary departure in lieu of removal. The record,

however, clearly demonstrates that any waiver by Narine did

not meet the standard of being knowing and intelligent, and

we therefore vacate the BIA’s order denying Narine’s motion

to reconsider and remand this case for proceedings consistent

with this opinion.

I.

Narine, a citizen of Guyana, entered the United States via

Miami International Airport in June 2001, using fraudulent

travel documents bearing the name "Rishi Rambial." He has

since married a naturalized citizen, with whom he has one

child. Although his wife’s I-130 petition for an alien relative

was approved in April 2005, Narine’s own I-485 application

for adjustment of status was denied.

NARINE v. HOLDER 3

After the Government initiated removal proceedings

against Narine in May 2005, an immigration judge ("IJ") sus-

tained the charge of removability at a hearing held on January

11, 2006. The IJ found Narine removable under Section

212(a)(6)(A)(i) of the Immigration and Nationality Act

("INA"), 8 U.S.C. § 1182(a)(6)(A)(1) (2006), because he had

failed to meet his burden of showing that he had been prop-

erly admitted after inspection by an immigration officer.

On April 10, 2006, the IJ held another hearing for Narine,

this time to evaluate his eligibility for relief from removal.

Narine brought with him a motion to withdraw representation

prepared and signed by his lawyer, Steffanie Lewis. Lewis

had represented Narine up to that point in his removal pro-

ceedings but she stated in her motion that Narine had asked

her to withdraw "[f]or economic reasons." (J.A. 279.) The

motion further stated that Lewis’ firm had "counseled Mr.

Narine with respect to his options in this matter as well as the

penalties and limitations of accepting a grant of voluntary

departure and failing to timely depart." (J.A. 280.) After pre-

senting the IJ with Lewis’ motion, Narine indicated that

Lewis had advised him that his best option was to leave vol-

untarily and to apply for a visa after returning to Guyana.

The following colloquy between Narine and the IJ then

took place:

Q: Mr. Narine, do you intend to leave the United

States?

A: Yes.

...

Q. Okay. And, this is the only request that you’re

making on the court, right?

A: Yes, Your Honor.

4 NARINE v. HOLDER

Q: And, if I grant voluntary departure today, do

you intend this as the final decision in your case

today?

A: No.

Q: If you say no, then you’re not eligible for vol-

untary departure and this stays at the proceeding. My

question to be clear is if I sign an order that says you

can leave voluntarily do you agree that this is the end

of this court case?

A: Yes.

(J.A. 285-86.) The IJ then granted Narine voluntary departure1

over the Government’s objection and asked Narine, "Do you

accept this as a final order?" (J.A. 287.) Narine replied, "Yes."

(Id.)

1

The INA recognizes two types of voluntary departure. So-called "pre-

conclusion voluntary departure" allows an alien charged with removability

to depart the country voluntarily prior to the completion of removability

proceedings, pursuant to 8 U.S.C. § 1229c(a)(1) (2006). "Post-conclusion

voluntary departure" allows an IJ to enter an order granting voluntary

departure at the conclusion of removal proceedings, where the conditions

of 8 U.S.C. § 1229c(b) (2006) are met.

The IJ did not specify which type of voluntary departure Narine was

being given, but it would seem that Narine was only eligible for post-

conclusion voluntary departure because the IJ had already found him

removable at his January 11, 2006, hearing. Nonetheless, in its dismissal

of Narine’s initial appeal, the BIA indicated that the IJ had determined that

Narine was eligible for pre-conclusion voluntary departure under 8 U.S.C.

§ 1229c(a) (2006). While we are not clear on what basis the BIA reached

this conclusion, neither Narine nor the Government has explicitly disputed

the BIA’s finding that Narine was given pre-conclusion voluntary depar-

ture (although Narine argues that the IJ’s decision to grant this type of vol-

untary departure was in error). Thus, we will assume for purposes of this

petition that Narine was given pre-conclusion voluntary departure and we

will use the terms "pre-conclusion voluntary departure" and "voluntary

departure" interchangeably in this opinion.

NARINE v. HOLDER 5

On May 8, 2006, Narine, once again represented by Lewis,

filed a notice of appeal with the BIA, challenging the IJ’s Jan-

uary 11 finding of removability. The BIA dismissed the

appeal for lack of jurisdiction on November 16, 2007. The

Board found that Narine had "accepted [pre-conclusion volun-

tary departure] as the final decision in his case and waived

appeal."2 (J.A. 390.) The Board went on to say that, even

though Lewis had withdrawn her representation at the time

Narine was granted voluntary departure, Narine’s request for

voluntary departure "was at the advice of counsel and was

with the respondent’s understanding that this order would be

final." (Id.)

Narine then filed a motion for reconsideration with the

BIA, contesting the Board’s finding that he had waived his

appellate rights by accepting voluntary departure. In an affi-

davit attached to the motion, Lewis denied ever advising

Narine about waiving his appellate rights.3 Nonetheless, the

BIA denied the motion to reconsider on February 12, 2008.

2

Section 1240.26(b)(1)(i) of Title 8 of the Code of Federal Regulations

specifies that pre-conclusion voluntary departure is only available where

an alien:

(A) Makes such request prior to or at the master calendar hearing

at which the case is initially calendared for a merits hearing;

(B) Makes no additional requests for relief . . . ;

(C) Concedes removability;

(D) Waives appeal of all issues; and

(E) Has not been convicted of a crime described in section

101(a)(43) of the Act and is not deportable under section

237(a)(4).

(emphasis added). Once an alien waives his right to appeal, the BIA no

longer has jurisdiction to review a decision of an IJ. See In re Shih, 20 I.

& N. Dec. 697 (B.I.A. 1993).

3

Lewis indicated that she believed that Narine was only eligible for

post-conclusion voluntary departure, see footnote 1, supra, which does not

require an alien to waive appeal, see 8 U.S.C. § 1229c(b) (2006); 8 C.F.R.

§ 1240.26(c) (2008).

6 NARINE v. HOLDER

Maintaining that it lacked jurisdiction to hear Narine’s appeal,

the BIA stated that:

[d]uring the removal hearing before the Immigration

Judge on April 10, 2006, the respondent was repre-

sented by present counsel and he expressly waived

his right to appeal . . . . The Immigration Judge

advised the respondent on the record that he must

waive his right to appeal in order to receive pre-

conclusion voluntary departure, and the respondent

expressly waived appeal.

(J.A. 433.) Narine now timely petitions this Court for review

of this denial of his motion to reconsider.

II.

We have jurisdiction to review Narine’s petition under 8

U.S.C. § 1252 (2006). We review a denial of a motion to

reconsider for an abuse of discretion. Jean v. Gonzales, 435

F.3d 475, 481 (4th Cir. 2006). This means that we can reverse

"only if the Board acted arbitrarily, irrationally, or contrary to

law." Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir.

2005).

Blatant factual errors in the BIA’s decision provide the first

indication that the BIA acted arbitrarily in denying Narine’s

motion to reconsider. The decision states that Narine "was

represented by present counsel" at his April 10, 2006, hearing

(J.A. 433), even though it is clear from the record that Narine

was not represented by counsel at that hearing. In fact, it was

at the April 10 hearing that Narine presented Lewis’ motion

to withdraw from representation. Similarly, the BIA justified

its denial of Narine’s motion to reconsider with the explana-

tion that Narine had "expressly waived his right to appeal"

after the IJ "advised the respondent on the record that he must

waive his right to appeal in order to receive pre-conclusion

voluntary departure." (Id.) But the word "appeal" does not

NARINE v. HOLDER 7

appear anywhere in the transcript of the April 10 hearing. The

IJ’s colloquy with Narine plainly did not include any discus-

sion of the fact that waiver of appeal was a condition of vol-

untary departure. The IJ did indicate several times that her

decision to grant voluntary departure would be "final," (J.A.

286-87), but this is a far cry from an express warning about

waiver of appeal.

Still, we might not find an abuse of discretion if the BIA’s

decision to deny the motion based on a lack of jurisdiction

was ultimately supported by the law. It is not. The BIA’s

denial stands in significant tension with both its own prece-

dent as well as decisions of the federal courts.

An alien’s waiver of his appellate rights must be "know-

ingly and intelligently made." In re Rodriguez-Diaz, 22 I. &

N. Dec. 1320, 1322 (B.I.A. 2000) (citing United States v.

Mendoza-Lopez, 481 U.S. 828, 840 (1987)). The Government

contends that Narine’s waiver was knowing and intelligent

because, even though he was not represented by counsel at the

April 10 hearing, he had already been advised by counsel

about the "limitations of accepting a grant of voluntary depar-

ture." (J.A. 280.) The Government further suggests that, by

responding in the affirmative when the IJ asked him if he

understood that voluntary departure was a final decision,

Narine clearly indicated that he comprehended the conse-

quences of voluntary departure.

The Government’s arguments strain credulity. In her affida-

vit presented with Narine’s motion to reconsider, Lewis

explicitly denies ever discussing waiver of appellate rights

with Narine in counseling him to accept voluntary departure.

But, even if she had, a vague statement made in an attorney’s

motion to withdraw from representation would not excuse an

IJ from herself discussing the particular conditions of volun-

tary departure with an unrepresented alien. In In re Cordova,

22 I. & N. Dec. 966, 971 (B.I.A. 1999), the BIA held that,

where an alien is eligible for pre-conclusion voluntary depar-

8 NARINE v. HOLDER

ture, an IJ must "explicitly advise the alien that he or she must

waive the right to appeal in order to be granted this form of

voluntary departure." In a later decision emphasizing the

importance of ensuring that a waiver of appeal is made explic-

itly in these circumstances, the BIA explained that:

[G]iven the regulatory requirement that the right to

appeal be waived [8 C.F.R. § 1240.26(b)(1)(i)] and

the due process implications of construing an "im-

plicit" waiver of the right to appeal, as well as the

jurisdictional implications of a waiver itself, we find

it critical that the record must clearly demonstrate

that the right to appeal was actually, and not merely

constructively, waived by the alien.

In re Ocampo, 22 I. & N. Dec. 1301, 1304 (B.I.A. 2000). The

Board admitted a limited exception to that rule in cases where

"the record contains a written stipulation or comparable docu-

mentary evidence wherein the respondent, or the respondent’s

counsel, expressly waives appeal as part of establishing that

all the regulatory requirements for this form of voluntary

departure have been satisfied." Id. at 1305. But Lewis’ vague

statement that she had discussed the "limitations of accepting

a grant of voluntary departure" with Narine is far from suffi-

cient to invoke Ocampo’s exception to the express waiver

requirement.

We also cannot accept the Government’s contention that

Narine demonstrated a clear understanding of the conse-

quences of accepting voluntary departure by responding affir-

matively when the IJ asked if he agreed that her decision was

final. The phrase "final decision" is a term of art, and it is a

stretch to think that a legally unsophisticated, unrepresented,

non-native English speaker would understand that by accept-

ing a "final decision" in his case he was waiving his appellate

rights. See In re Rodriguez-Diaz, 22 I. & N. Dec. at 1322-23.

In Rodriguez-Diaz, the BIA explained:

NARINE v. HOLDER 9

Asking the parties whether they accept a decision

as "final" is a shorthand expression commonly used

by Immigration Judges. . . . Those who understand

the meaning of this shorthand expression, such as

aliens represented by attorneys or accredited repre-

sentatives, may effectively waive appeal in response

to this simple question.

However, the meaning and significance of this

shorthand expression may not be apparent to the

unrepresented alien. Asking an unrepresented alien

whether he or she accepts a decision as "final" does

not necessarily alert the alien to the fact that the

question concerns the right of appeal or that an affir-

mative answer will be construed as an irrevocable

waiver of that right.

Id. at 1322. The BIA admitted that "the precise articulation of

appeal rights required in any given case will necessarily

depend on the circumstances of that case," but noted that

where an alien is unrepresented, the need for an explicit

explanation of a waiver of appeal rights is especially impor-

tant. Id. at 1323; see also Ali v. Mukasey, 525 F.3d 171, 174

(2d Cir. 2008) (finding in a case where an alien was repre-

sented by counsel at removal proceedings that it was nonethe-

less unclear whether counsel understood the import of the IJ’s

statement that his order was "final"); United States v. Fares,

978 F.2d 52, 56-57 (2d Cir. 1992) (finding that an IJ’s expla-

nation to an unrepresented alien that a removal order was

"final" did not suffice to show that the alien understood that

he had waived his right to appeal that order).

While Rodriguez-Diaz suggests that, in some circum-

stances, use of the shorthand expression "final decision"

might be sufficient to effect a knowing and intelligent waiver,

it is clear that the same factors which led the BIA to find the

waiver insufficient in Rodriguez-Diaz are also at play here.

See 22 I. & N. Dec. at 1322-23. The IJ never explained that

10 NARINE v. HOLDER

Narine would be waiving his right to appeal by accepting vol-

untary departure, and at no point in her colloquy with Narine

did the IJ discuss Narine’s appellate options. Furthermore,

Narine was a legally unsophisticated party who was not repre-

sented by counsel and could not be expected to understand the

implication of the IJ’s shorthand use of the word "final."

III.

Because the record demonstrates that Narine did not know-

ingly and intelligently waive his right to appeal before the IJ,

we find that the BIA abused its discretion in denying Narine’s

motion to reconsider for lack of jurisdiction. Accordingly, we

grant Narine’s petition for review, vacate the BIA’s order

denying Narine’s motion to reconsider, and remand to the

BIA for further proceedings consistent with this decision.

PETITION FOR REVIEW GRANTED;

VACATED AND REMANDED