Maxime P. Blanc v. U.S. Attorney General, 996 F.3d 1274

Background

Maxime Blanc, a lawful permanent resident, was convicted twice (identity-fraud offenses) and placed in removal proceedings for crimes involving moral turpitude (and charged as aggravated-felony conduct).
At the initial master calendar hearing the immigration judge (IJ) did not inform Blanc of his apparent eligibility for preconclusion voluntary departure as required by agency regulations; Blanc proceeded pro se.
The IJ later found Blanc removable, denied cancellation of removal and postconclusion voluntary departure, and ordered removal.
On appeal the Board of Immigration Appeals (BIA) upheld the IJ’s factual findings and discretionary denials and stated that preconclusion voluntary departure was not warranted—so the IJ’s failure to advise was “immaterial.”
The Eleventh Circuit held it lacked jurisdiction to review the BIA’s discretionary denial of voluntary departure under 8 U.S.C. § 1252(a)(2)(B), because the BIA independently decided the voluntary-departure issue; a dissent argued the BIA did not actually make an independent preconclusion determination and that the IJ’s procedural error was material.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the court has jurisdiction to review denial of voluntary departure	Blanc: Court may review IJ’s failure to inform him of preconclusion voluntary departure as a procedural/regulatory violation	Gov’t: BIA independently denied voluntary departure; discretionary denials are unreviewable under §1252(a)(2)(B)	Court: No jurisdiction—BIA’s independent discretionary denial cuts off review
Whether the BIA’s statement constituted an independent denial of preconclusion voluntary departure	Blanc: BIA only reviewed IJ’s postconclusion denial and made no independent preconclusion decision	Gov’t: BIA explicitly considered voluntary departure and concluded Blanc did not merit discretionary grant	Court: BIA exercised its own discretion and determined preconclusion relief was not warranted
Whether IJ violated agency regulations by failing to notify of apparent eligibility for preconclusion relief	Blanc: IJ’s omission violated 8 C.F.R. §1240.11(a)(2) and In re Cordova notice requirements	Gov’t: Even if omission occurred, the BIA’s independent denial renders it immaterial	Court: Assumes IJ erred in omission but finds the error immaterial because BIA denied relief independently
Whether a procedural challenge can survive when the agency has itself considered the procedural error on appeal	Blanc: Procedural errors remain reviewable (Kurapati) and cannot be sidestepped by reframing	Gov’t: Where the agency addressed the procedural error and reached a discretionary result, §1252(a)(2)(B) bars review	Court: Kurapati is distinguishable; here BIA addressed and independently denied relief, so jurisdiction is barred

Key Cases Cited

Dada v. Mukasey, 554 U.S. 1 (2008) (explains availability of voluntary departure pre- and post- adjudication)
Patel v. U.S. Att’y Gen., 971 F.3d 1258 (11th Cir. 2020) (jurisdictional bar for discretionary immigration relief; only legal/constitutional claims reviewable)
Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247 (11th Cir. 2006) (de novo review of subject-matter jurisdiction)
Kurapati v. U.S. Bureau of Citizenship & Immigr. Servs., 775 F.3d 1255 (11th Cir. 2014) (agency procedural violations may be reviewable even when ultimate discretionary decision is not)
Alvarado v. U.S. Att’y Gen., 610 F.3d 1311 (11th Cir. 2010) (applies §1252(a)(2)(B) to voluntary departure denial)
Indrawati v. U.S. Att’y Gen., 779 F.3d 1284 (11th Cir. 2015) (scope of appellate review where BIA issues independent decision)
Gonzales v. Reno, 212 F.3d 1338 (11th Cir. 2000) (agencies must follow their own procedural rules)
Najjar v. Ashcroft, 257 F.3d 1262 (11th Cir. 2001) (review limited to BIA decision unless BIA adopts IJ reasoning)