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