Kandamar v. Gonzales

United States Court of Appeals
For the First Circuit

No. 05-2523

ABDELAZIZ KANDAMAR,

Petitioner,

v.

ALBERTO R. GONZALES, United States Attorney General,

Respondent.

____________________

ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS

____________________

Before

Boudin, Chief Judge,
Selya, Circuit Judge,
and Saris,* District Judge.
____________________

William P. Joyce on brief for petitioner.
Leslie McKay, Senior Litigation Counsel, Office of Immigration
Litigation, U.S. Department of Justice, Peter D. Keisler, Assistant
Attorney General, and Linda S. Wernery, Assistant Director, on
brief for respondent.

September 26, 2006

*
Of the District of Massachusetts, sitting by designation.
 SARIS, District Judge. Petitioner Abdelaziz Kandamar, a

native and citizen of Morocco, seeks review of an order of the

Board of Immigration Appeals (“BIA”) dismissing an appeal of a

final order of removal. In its order, the BIA affirmed the

decision of the Immigration Judge (“IJ”) denying Petitioner’s

motion to suppress evidence taken by the Department of Homeland

Security (“DHS”)1 at the special registration interview under the

National Security Entry - Exit Registration System (“NSEERS”).

Kandamar claims that NSEERS violated his equal protection and due

process rights. In the alternative, Kandamar asserts that the IJ

erred in denying the application for voluntary departure because

during the special registration DHS had taken Kandamar’s expired

passport, which was allegedly necessary to obtain a valid travel

document. After careful review of the record, we DENY the petition

for review.

I. BACKGROUND

A. Facts and Procedural History

Petitioner Kandamar, a native and citizen of Morocco,

entered the United States as a nonimmigrant B-2 visitor on April

28, 1999. He was authorized to remain in the country until May 23,

1999. Kandamar overstayed his visa. He has no criminal history.

On August 12, 2002, the Department of Justice issued an

NSEERS notice for the registration of certain young male

1
As of March 1, 2003, the Immigration and Naturalization
Service was dissolved and its functions were transferred to DHS.
This opinion will refer to both agencies as DHS.
nonimmigrant aliens from designated countries, including Morocco.

67 Fed. Reg. 70526 (Nov. 22, 2002). The NSEERS notice required

these nonimmigrants to appear before, register with, answer

questions from, and present documents, including a passport and an

I-94 card, to DHS. Id. at 70527. The NSEERS notice also specified

that DHS conduct the interview under oath and record answers. Id.

On January 15, 2003, Kandamar reported to the John F.

Kennedy Federal Building in Boston without counsel to comply with

the special registration procedures under the newly-issued NSEERS

notice. As instructed, he brought his passport, which had expired,

and his I-94 departure record. DHS officers took these documents.

At the conclusion of the interview, Kandamar was placed into

removal proceedings and charged with removability under 8 U.S.C.

§ 1227(a)(1)(B) for remaining longer than permitted following

admission as a nonimmigrant visitor. He was issued a Notice To

Appear.

The IJ continued Kandamar’s case twice so that he could

retain counsel. On July 29, 2003, Kandamar appeared at a hearing

with counsel, and the IJ continued the case again at the request of

counsel. On August 11, 2003, Kandamar filed a three-page motion to

suppress the evidence obtained by DHS “by unlawful search and

seizure,” alleging that NSEERS constitutes racial profiling and

discrimination based on national origin; violates substantive due

process because its use “to entrap nationals of certain countries”

is fundamentally unfair; and violates equal protection by treating
legal and illegal entrants differently.

At the hearing on August 12, 2003, Kandamar denied

removability. Kandamar’s counsel challenged the constitutionality

of NSEERS and, alternatively, asked for voluntary departure.

Stating that Kandamar’s passport had expired, he explained:

“However, the Government has [his] passport and the Moroccan

Consulate won’t give him a new passport without the old passport.”

After setting a date for a hearing on the merits of the motion to

suppress, the IJ returned to the issue of voluntary departure:

Q. So again, at the conclusion of the merits
hearing though, I will not be able to grant –-

A. I understand.

Q. -- voluntary departure if he does not have a
valid document, so –-

A. I mean, he can --

Q. –- just so you’re aware of that.

A. –- somehow work it out with the Moroccans.

Q. I don’t know, but I’m just saying that, you
know, those are the choices.

A. No, I understand.

Kandamar’s counsel did not ask for a return of the passport.
At the hearing on the motion to suppress on November 3,
2003, counsel stated that most of her arguments were in the brief,
but complained that she had just received the government’s
opposition. The IJ inquired:
Q. Well, you’re saying that you’re not ready to
proceed on this opposition or do you have any
additional arguments?

A. Most of the arguments that I was going to
bring up today were based on the brief, the
motion that we already filed.
 Q. All right, okay. And so, those are certainly
part of the record now unless there’s anything
in addition to your motion. Is there anything
in addition –-

A. No, Your Honor.

Q. –- to the motion? All right.

Denying the motion, the IJ held that the court “is not able to rule

on the constitutionality of the regulations,” denied Kandamar’s

application for voluntary departure because he was not statutorily

eligible for the relief due to the lack of any travel documents

permitting entry to Morocco, and ordered that Kandamar be removed

and deported to Morocco.

Kandamar appealed to the BIA, alleging that the IJ erred

in denying the application for voluntary departure, that the motion

to suppress should have been granted because NSEERS is

unconstitutional, and that the IJ should have conducted a factual

inquiry into what transpired at the NSEERS interview and the

circumstances of the seizure of Petitioner’s documents. He

specifically challenged the special registration interview because

he was not notified of his right to representation.

On September 7, 2005, the BIA declined to address the

challenge to NSEERS because “the Board is not empowered to rule on

the constitutionality of the statutes and regulations that we

administer.” With respect to the appeal of the denial of the

motion to suppress, it agreed with the IJ that Petitioner had not

shown that the government’s conduct was egregious, warranting the
application of the exclusionary rule to immigration proceedings

under INS v. Lopez-Mendoza, 468 U.S. 1032, 1051 n.5, 104 S. Ct.

3479, 82 L. Ed. 2d 778 (1984), and dismissed the appeal.

Kandamar challenges the denial of both the motion to

suppress and the application for voluntary departure.

II. DISCUSSION

A. Voluntary Departure

Kandamar petitions for review of the IJ’s denial of his

application for voluntary departure. Kandamar criticizes the BIA

because, in reviewing the IJ’s denial of the request for voluntary

departure, it did not consider the fact that Petitioner lacked a

valid passport because DHS had seized it. Kandamar also criticizes

the IJ for adjudicating his eligibility for post-hearing voluntary

departure after a “very brief hearing” with inadequate reasoning.

Specifically, he contends that the IJ initially indicated that she

would permit voluntary departure and did not explain what changed

her mind. These issues were properly raised first with the BIA.

Pursuant to 8 U.S.C. § 1229c(b), the “Attorney General

may permit an alien voluntarily to depart the United States at the

alien’s own expense if, at the conclusion of a [removal] proceeding

. . . the immigration judge enters an order granting voluntary

departure in lieu of removal and” makes certain findings, including

that the alien has established by clear and convincing evidence

that “the alien has the means to depart the United States and

intends to do so.” Section 1229c specifically states that “[n]o
court shall have jurisdiction over an appeal from denial of a

request for an order of voluntary departure.” Id. § 1229c(f); see

also 8 C.F.R. § 240.25. Moreover, § 1252(a)(2)(B) provides that

no court shall have jurisdiction to review any judgment regarding

the granting of relief under 8 U.S.C. § 1229c. Thus, this court

lacks authority to review a refusal to allow voluntary departure.

Karim v. Gonzales, 424 F.3d 109, 111-12 (1st Cir. 2005).

Petitioner seeks to circumvent this jurisdictional bar by

claiming that the IJ gave him an inadequate hearing on his claim

that his passport was unfairly taken from him at the NSEERS

interview and that her reasoning was insufficient. “A due process

claim requires that a cognizable liberty or property interest be at

stake.” DaCosta v. Gonzales, 449 F.3d 45, 50 (1st Cir. 2006)

(citation omitted). Discretionary forms of relief do “not rise to

the level of such a protected interest.” Id. (adjustment of

status) (citation omitted). Thus, to the extent Petitioner seeks

to paint his claim in due process colors, that claim will not

succeed because voluntary departure is a “privilege, not a right.”

Jupiter v. Ashcroft, 396 F.3d 487, 492 (1st Cir.) (citation

omitted), cert. denied, 126 S. Ct. 427, 163 L. Ed. 2d 325 (2005).

In any event, the IJ succinctly explained that the lack of a

passport or any other travel document precluded voluntary

departure. No greater hearing or rationale was necessary on the

point.

Kandamar’s primary protest is that the DHS improperly
seized his passport at the special registration. The issue is

poorly vetted in the record as the government does not cite any

legal authority to support the seizure of the passport. While the

special registration regulations authorize the government to

require the immigrant to provide “information or documentation

confirming compliance with his or her visa and admission,” 8 C.F.R.

§ 264.1(f)(4)(ii), which presumably includes the passport, they do

not authorize seizure of the passport.2 Even assuming the expired

passport were improperly seized, as opposed to inspected, at the

NSEERS interview, there is no evidence in the record from January

15, 2003, when the passport was taken from him, until the merits

hearing on November 3, 2003, that Kandamar timely sought the return

of his passport. While he alerted the IJ to the fact DHS seized

the passport, he did not urge the IJ to order DHS to return it,

although he knew a travel document would have to be produced at the

merits hearing. Karim, 424 F.3d at 111 (denying voluntary

departure where passport was seized at a special registration but

alien did not request return from IJ). Moreover, the bare-bones

allegation that Morocco would not renew the passport without the

presentation of the expired one does not demonstrate that diligent

efforts were made before the removal hearing to secure one. See 8

C.F.R. § 1240.26.

2
In contrast, under another regulation governing voluntary
departures, an authorized officer may inspect, photocopy, and hold
a passport “for sufficient time to investigate its authenticity” as
a condition to the granting of voluntary departure. See 8 C.F.R.
§ 240.25(b) (2002).
B. Other Due Process Claims

Kandamar raises a multi-pronged attack on NSEERS, arguing

that the evidence obtained from the NSEERS interview should be

suppressed because NSEERS, both facially and as applied to him, is

fundamentally unfair in violation of the Fourth and Fifth

Amendments. Legal conclusions are reviewed de novo, including

alleged errors related to due process claims. Settenda v.

Ashcroft, 377 F.3d 89, 92-93 (1st Cir. 2004).

In the immigration context, the Supreme Court has left

open only a “glimmer of hope of suppression.” Navarro-Chalan v.

Ashcroft, 359 F.3d 19, 22 (1st Cir. 2004). Specifically, the

Supreme Court has concluded

that the cost of the exclusionary rule generally
outweighs its benefits in the context of civil
deportation hearings. The Court thus held that the
exclusionary rule generally should not apply in
that context, but may have left the door open in
cases of “egregious violations of Fourth Amendment
or other liberties that might transgress notions of
fundamental fairness and undermine the probative
value of the evidence obtained.”

Id. at 22-23 (quoting INS v. Lopez-Mendoza, 468 U.S. 1032, 1050-51,

104 S. Ct. 3479, 82 L. Ed. 2d 778 (1984)). In setting forth that

rule, the Supreme Court noted favorably the BIA holding that

“evidence will be excluded if the circumstances surrounding a

particular arrest and interrogation would render use of the

evidence obtained thereby ‘fundamentally unfair’ and in violation

of due process requirements of the Fifth Amendment.” Id. at 151

n.5 (citing Matter of Toro, 17 I & N Dec. 340, 343 (1980)). We
examine Kandamar’s claims to determine whether there is evidence of

an “egregious violation” of the Fourth Amendment or other

liberties.

To begin, Kandamar claims that his due process rights

were violated because he was not given the option of having counsel

present at the NSEERS interview. Kandamar did not present this

argument to the IJ either in his motion to suppress or at the

hearing. While he did present the argument to the BIA, the BIA did

not expressly address it. By regulation, Kandamar does have a

right to be represented by counsel at examinations by immigration

officers, such as the NSEERS special registration. “[W]henever an

examination is provided for in this chapter, the person involved

shall have the right to be represented by an attorney.” 8 C.F.R.

§ 292.5(b). While the regulations do provide that the alien be

notified of his right to counsel (at no expense to the government)

and be given a list of free legal services at a deportation

hearing, see id. § 246.5(b), Kandamar received this notification.

However, he does not point to any parallel regulation that requires

that an immigration examiner similarly explain the right to

representation at the special registration interview, although it

would seem to be a better practice. There is no evidence that

Kandamar was precluded from having counsel present at his

interview.

Next, although the argument is not clear-cut, Kandamar

argues that the NSEERS special registration was so coercive that a
reasonable person would have believed that he was not free to

leave. We have held that in some circumstances, statements by an

arrested alien can be involuntary and coerced in violation of the

Due Process Clause of the Fifth Amendment. See Navia-Duran v. INS,

568 F.2d 803, 808 (1st Cir. 1977) (reversing a deportation order

where statements of alien were coerced in violation of the Due

Process Clause). Kandamar claims that DHS’s restraint violated the

regulation governing administrative detention under 8 C.F.R.

§ 287.8(b)(1) because the inherent nature of special registration

creates an atmosphere where a reasonable person would conclude he

is not free to leave. Section 287.8(b) provides:

Interrogation is questioning designed to elicit
specific information. An immigration officer, like
any other person, has the right to ask questions of
anyone as long as the immigration officer does not
restrain the freedom of an individual, not under
arrest, to walk away.

8 C.F.R. § 287.8(b). Kandamar did not squarely present this

argument that his interview was so coercive as to be tantamount to

detention to either the IJ or the BIA. A petitioner is generally

required to exhaust administrative remedies with the BIA before

raising an issue in a petition for review of a final order of

removal. See 8 U.S.C. § 1252(d)(1); Olvjore v. Gonzales, 411 F.3d

16, 23 (1st Cir. 2005). We have indicated that, in rare

circumstances, an asserted denial of due process may be exempt from

the ordinary exhaustion requirement, for example, where the claim

is beyond the authority of the agency to adjudicate. DaCosta v.

Gonzales, 449 F.3d 45, 49 (1st Cir. 2006). When constitutional
claims “involve procedural errors correctable by the BIA,

applicants must raise such claims as part of their administrative

appeal.” Capric v. Ashcroft, 355 F.3d 1075, 1087 (7th Cir. 2004).

As such, Kandamar failed to exhaust his administrative remedies to

preserve his claim.

Kandamar also argues that the IJ should have granted him

a hearing about what transpired at the special registration, an

issue that was argued to the BIA. Kandamar did not proffer any

specific evidence of any government misconduct by threats, coercion

or physical abuse to the IJ or the BIA with regard to his NSEERS

interview that would constitute egregious government conduct.

There is no evidence that Kandamar asked to leave, was told he

could not leave, or was restrained from leaving during the

interview. The allegation of an intimidating atmosphere created by

armed guards seems to be gleaned from an unpublished case in

another jurisdiction rather than Petitioner’s own personal

experience. Most importantly, immigration counsel did not request

an evidentiary hearing before the IJ but rested on her brief, which

did not raise this claim at all.

Kandamar’s most interesting due process claim is the

poorly developed argument made to the BIA that NSEERS is

fundamentally unfair because it violates the equal protection

principles embodied in the Fifth Amendment, contending that it only

affects nationals of certain countries and thus constitutes blatant
racial profiling.3 This is the type of fundamental constitutional

claim the BIA is powerless to address. Hadayat v. Gonzales, ---

F.3d ----, 2006 WL 2347365, at *5 (7th Cir. August 15, 2006).

The Due Process Clause of the Fifth Amendment contains an

equal protection safeguard. See Bolling v. Sharpe, 347 U.S. 497,

499-500, 74 S. Ct. 693, 98 L. Ed. 884 (1954); Rodriguez-Silva v.

INS, 242 F.3d 243, 246 (5th Cir. 2001). We have held that aliens

are entitled to equal protection of the law under the Fifth

Amendment. See Viera García v. INS, 239 F.3d 409, 414 (1st Cir.

2001) (applying a rational basis for review to an equal protection

analysis involving a non-race based classification).

However, Congress may permissibly set immigration

criteria based on an alien’s nationality or place of origin. The

Supreme Court has long held that judicial review of line-drawing in

the immigration context is deferential. See INS v. Aguirre-

Aguirre, 526 U.S. 415, 425, 119 S. Ct. 1439, 143 L. Ed. 2d 590

(1999) (noting “we have recognized that judicial deference to the

Executive Branch is especially appropriate in the immigration

context” (citation omitted)); Fiallo v. Bell, 430 U.S. 787, 792, 97

S. Ct. 1473, 52 L. Ed. 2d 50 (1977) (“This Court has repeatedly

emphasized that ‘over no conceivable subject is the legislative

power of Congress more complete than it is over’ the admission of

3
While Kandamar’s original motion to suppress also argued that
NSEERS violated equal protection by treating legal and illegal
entrants to the United States differently, Kandamar does not press
this argument on appeal. The Court does not address it.
aliens.” (quoting Oceanic Navigation Co. v. Stranahan, 214 U.S.

320, 339, 29 S. Ct. 671, 53 L. Ed. 1013 (1909))). We have

similarly stated:

Nowhere is the scope of judicial inquiry more
limited than in the area of immigration
legislation. Indeed, the Supreme Court has “long
recognized the power to expel or exclude aliens as
a fundamental sovereign attribute exercised by the
Government’s political departments largely immune
from judicial control.” The political character of
this intrinsically executive function renders it
“subject only to narrow judicial review.”

Adams v. Baker, 909 F.2d 643, 647 (1st Cir. 1990) (citations

omitted).

The Supreme Court has not had occasion to address

directly the level of scrutiny that pertains to an equal protection

challenge based on national origin in the immigration context. In

Nguyen v. INS, 533 U.S. 53, 121 S. Ct. 2053, 150 L. Ed. 2d 115

(2001), the Supreme Court held that a statute that imposed

different requirements for a child’s acquisition of citizenship

depending on the gender of the citizen parent did not violate the

equal protection guarantee embodied in the Due Process Clause of

the Fifth Amendment. Finding that the statute’s gender-based

“classification serves ‘important governmental objectives and that

the discriminatory means employed’ are ‘substantially related to

the achievement of those objectives,’” it declined to “decide

whether some lesser degree of scrutiny pertains [in an equal

protection challenge] because the statute implicates Congress’

immigration and naturalization power.” Id. at 60-61 (citations
omitted).

Congress has given the Attorney General great latitude in

setting special registration requirements. 8 U.S.C. § 1305.

Section 1305(b) provides:

The Attorney General may in his discretion, upon
ten days notice, require the natives of any one or
more foreign states, or any class or group thereof,
who are within the United States and who are
required to be registered under this title, to
notify the Attorney General of their current
addresses and furnish such additional information
as the Attorney General may require.

See also id. § 1303(a) (authorizing the Attorney General to

prescribe special regulations and forms for the registration of

“aliens of any other class not lawfully admitted to the United

States for permanent residence”).

The rationale for establishing NSEERS is set forth in the

Federal Register as follows:

Recent terrorist incidents have underscored the
need to broaden the special registration
requirements for nonimmigrant aliens from certain
designated countries, and other nonimmigrant aliens
whose presence in the United States requires closer
monitoring, to require that they provide specific
information at regular intervals to ensure their
compliance with the terms of their visas and
admission, and to ensure that they depart the
United States at the end of their authorized stay.
On June 13, 2002, the Department published a
proposed rule to modify the regulations to require
certain nonimmigrant aliens to make specific
reports to the Immigration and Naturalization
Service; upon arrival, approximately 30 days after
arrival; every twelve months after arrival; upon
certain events, such as a change of address,
employment, or school; and at the time they leave
the United States. This final rule adopts the
proposed rule without substantial change.
Registration and Monitoring of Certain Nonimmigrants, 67 Fed. Reg.

52584 (Aug. 12, 2002). On November 22, 2002, “[i]n light of recent

events, and based on intelligence information available to the

Attorney General,” the Attorney General designated that certain

adult males who were nationals and citizens from Morocco and other

countries were subject to NSEERS. 67 Fed. Reg. 70526 (Nov. 22,

2006).

Petitioner argues in conclusory fashion that the

classification based on national origin violates equal protection

principles. Every court to address the issue has rejected a

challenge to NSEERS registration on equal protection grounds. See

Ahmed v. Gonzales, 447 F.3d 433, 439-40 (5th Cir. 2006); Ali v.

Gonzales, 440 F.3d 678, 681 n.4 (5th Cir. 2006); Zafar v. U.S.

Attorney Gen., --- F.3d ----, 2006 WL 2440044, at *10-11 (11th Cir.

January 24, 2006); Roudnahal v. Ridge, 310 F. Supp. 2d 884, 892

(N.D. Ohio 2003). Possibly, the events of September 11, 2001, and

terrorist activities around the world, inform the degree of

scrutiny to be applied, but we in any event give deference to the

Attorney General’s requirement that young males from certain

countries be subject to special registration. We hold that a

special registration system serves legitimate government objectives

of monitoring nationals from certain countries to prevent terrorism

and is rationally related to achieving these monitoring objectives.

See Narenji v. Civiletti, 617 F.2d 745, 747 (D.C. Cir. 1979)

(finding there was a rational basis for the special registration of
Iranian students after the taking of hostages in the United States

embassy in Iran).

It is worth emphasizing that the decision to remove

Petitioner was based on the fact that he had overstayed his visa,

not based on his national origin. To be sure, Moroccan nationals

were required to register with DHS while a person in the same

situation but not from one of the NSEERS countries would not have

been placed in removal proceedings. However, a claim of selective

enforcement based on national origin is virtually precluded by Reno

v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 119

S. Ct. 936, 142 L. Ed. 2d 940 (1999) (involving Palestinians

affiliated with a political group targeted for deportation for

routine immigration violations). In Reno, the Supreme Court held

that courts lack jurisdiction under 8 U.S.C. § 1252(g) over most

selective prosecution claims: “When an alien’s continuing presence

in this country is in violation of the immigration laws, the

Government does not offend the Constitution by deporting him for

the additional reason that it believes him to be a member of an

organization that supports terrorist activity.” Id. at 491-92.

The Supreme Court did, however, leave open “the possibility of a

rare case in which the alleged basis of discrimination is so

outrageous that the foregoing considerations can be overcome.” Id.

at 491. The Seventh Circuit recently rejected a similar selective

prosecution equal protection challenge to NSEERS, finding it lacked

jurisdiction to review the basis for enforcement under 8 U.S.C. §
1252(g) because the petitioner failed to show that the NSEERS

program lacked the requisite outrageousness. See, e.g., Hadayat v.

Gonzales, 2006 WL 2347365 at *6. There is nothing in this record

to demonstrate outrageous discrimination.

Finally, in a twist on an earlier contention, Petitioner

asserts that the evidence derived from the examination,

specifically from the passport, should be suppressed because the

seizure was a violation of the Fourth Amendment and was

fundamentally unfair. While the seizure is troubling because the

government has cited no legal authority for holding the passport,

Kandamar has not demonstrated any prejudice resulting from the

seizure that would warrant reversal of the removal order here. In

this case, Kandamar admitted his identity at each of the IJ

hearings. The government had a copy of Kandamar’s I-94 departure

record, which establishes Kandamar’s temporary admission into the

United States and his overstay, in its own files. Certainly, there

can be little doubt about DHS’s authority to inspect and photograph

the passport and other documentation. Therefore, in light of the

availability of untainted government records and lack of egregious

government misconduct, any error that occurred from a seizure would

be harmless. Karim, 424 F.3d at 112.

III. CONCLUSION

The petition for review is denied.