MAXIME P. BLANC, Petitioner, versus UNITED STATES ATTORNEY GENERAL, Respondent.
No. 19-12508
Agency No. A043-837-330
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
(May 11, 2021)
Before WILSON, GRANT, and TJOFLAT, Circuit Judges.
[PUBLISH]
Petition for Review of a Decision of the Board of Immigration Appeals
Maxime Blanc, a lawful permanent resident of the United States, was charged with removability after he was twice convicted of crimes involving moral turpitude. During the removal proceedings, the immigration judge failed to inform Blanc that he could apply for “preconclusion voluntary departure“—a discretionary form of relief that allows aliens to leave the country at their own expense before removal proceedings conclude. The immigration judge ordered him removed.
In the meantime, Blanc learned about preconclusion voluntary departure, and he complained on appeal that, among other things, he had not been informed about this relief when he should have been. The Board of Immigration Appeals upheld his removal. Blanc, who says that he would have applied for preconclusion voluntary departure had he known about it, asks us to vacate his removal order so he can apply for the relief during a new round of removal proceedings.
We lack jurisdiction to consider his petition. That is because, exercising its own discretion, the Board decided on appeal that preconclusion voluntary departure was not warranted in Blanc‘s case. Crucially, the Board‘s decision was within its independent discretion; that is, no matter what the immigration judge would have decided about preconclusion voluntary departure had it been raised, the Board had the authority to enforce its own judgment on the question. And once the Board exercised that judgment and ordered removal, it cut off any jurisdiction we might have had to consider Blanc‘s petition.
I.
Blanc, a native and citizen of Dominica, became a lawful permanent resident of the United States in 1994. But in 2012, he was convicted of two crimes: aggravated identity theft and possession of fifteen or more social security numbers with intent to defraud. He was sentenced to thirty months’ imprisonment followed by three years of supervised release. Shortly after beginning supervised release, Blanc returned to his old ways; just four years after his first convictions, he was again convicted and sentenced for committing the same identity-fraud crimes.
These convictions brought Blanc to the attention of the Department of Homeland Security. In 2018, the Department initiated removal proceedings. The notice to appear for those proceedings charged Blanc with removability under
A few months later, Blanc appeared pro se before an immigration judge. The immigration judge indicated that the hearing was “an initial Master Calendar hearing” for Blanc and fifteen others. That is when the immigration judge had the procedural duty to inform the aliens of their “apparent eligibility” for various forms of relief, including preconclusion voluntary departure.
Blanc never did get a lawyer—he appeared without one for the rest of his removal proceedings. At his second hearing before the immigration judge, he admitted the allegations in the notice to appear. He then pointed out that he had applied for cancellation of removal in addition to his motion for termination of proceedings. But the immigration judge waved him off, responding that the best course of action would be to first determine whether Blanc was removable as charged and then consider those applications if needed.
The immigration judge did decide during Blanc‘s next appearance that he was removable for committing two crimes involving moral turpitude, though not as an aggravated felon. After asking a series of questions aimed at evaluating avenues of relief available to Blanc, the immigration judge explained that he would consider him for cancellation of removal or, in the alternative, postconclusion voluntary departure.
Blanc‘s fourth and final appearance came two months later, when the immigration judge denied his applications for cancellation of removal and postconclusion voluntary departure. In that last proceeding, the immigration judge ordered Blanc removed.
Blanc appealed the immigration judge‘s decision to the Board of Immigration Appeals, contending that it was error to deny him cancellation of removal and postconclusion voluntary departure. He also argued that the immigration judge violated agency regulations by not informing him at his master calendar hearing that he could apply for preconclusion voluntary departure.
The Board dismissed his appeal. It first concluded that the immigration judge‘s findings of fact were not clearly erroneous, and that the immigration judge did not exceed his authority in denying the discretionary forms of relief that Blanc sought. Turning to Blanc‘s argument about preconclusion voluntary departure, the Board noted that voluntary departure, whether considered before or after removal proceedings conclude, “is a discretionary form of relief.” Blanc‘s case, according to the Board, did not warrant “a discretionary grant” of preconclusion voluntary departure, making the immigration judge‘s failure to advise him of this avenue of relief “immaterial.”
That brings us to the present petition. Blanc sought review from this Court and moved for an emergency stay of removal. As he sees it, the immigration judge‘s failure to inform him that he could apply for preconclusion voluntary departure mandates vacatur of his removal order. He asks us to remand his case so he can, now that he knows about it, apply for this relief before the immigration judge. The government moved to dismiss Blanc‘s petition for lack of jurisdiction under
II.
We review our subject matter jurisdiction de novo. Amaya-Artunduaga v. U.S. Att‘y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006). Where we have jurisdiction and the Board issues its own opinion, we review only that decision, except to the extent that the Board adopts the immigration judge‘s reasoning. Lopez v. U.S. Att‘y Gen., 914 F.3d 1292, 1297 (11th Cir. 2019).
The Immigration and Nationality Act gives the Attorney General discretion to permit aliens to voluntarily leave the country at their own expense.
The regulations governing removal proceedings require immigration judges to inform aliens of their “apparent eligibility” for various kinds of relief, including preconclusion voluntary departure.
At the agency level, the Board of Immigration Appeals itself can grant—or deny—voluntary departure. That ability is wrapped up in its authority to “review questions of law, discretion, and judgment and all other issues in appeals from decisions of immigration judges de novo.”
As for our review, this Court lacks jurisdiction to review discretionary denials of relief in immigration proceedings, including the denial of voluntary departure.
Blanc contends that the immigration judge in his case never informed him that he could apply for preconclusion voluntary departure, despite his apparent eligibility for it. Based on the available hearing transcripts, it appears that he is right.2
In its order, the Board first addressed the immigration judge‘s denial of postconclusion voluntary departure. After discussing the immigration judge‘s weighing of the equities, it concluded that the immigration judge did not exceed his authority “in determining that the respondent did not merit a favorable exercise of discretion for cancellation of removal and voluntary departure.” Having already addressed the issues the immigration judge considered, the Board independently—and explicitly—considered the question of preconclusion voluntary departure:
The respondent argues throughout his brief that the Immigration Judge should have advised him of his right to pre-conclusion voluntary departure. Voluntary departure is a discretionary form of relief, whether pre-conclusion or post-conclusion voluntary departure. Since the respondent did not demonstrate that he warranted a discretionary grant of voluntary departure, it was immaterial that the Immigration Judge did not inform him of the potential availability of pre-conclusion voluntary departure.
The Board itself thus determined that this relief was not warranted—regardless of the immigration judge‘s failure to inform Blanc that he was eligible to apply for it. In other words, the Board exercised its independent authority to deny Blanc this relief in the first instance. And the Board also addressed Blanc‘s claim that the immigration judge erred by failing to inform Blanc that he could apply for preconclusion voluntary departure, determining that any failure was “immaterial” because Blanc did not warrant this relief either way.
The Board‘s independent decision was also an exercise of its discretion. As the Board explained, voluntary departure “is a discretionary form of relief, whether pre-conclusion or post-conclusion.” And the Board did not deny Blanc preconclusion voluntary departure because he failed to meet statutory or regulatory criteria, or because the immigration judge had effectively denied it. Instead, it determined for itself that Blanc didn‘t warrant “a discretionary grant” of that relief.
Because the Board made a discretionary decision about Blanc‘s entitlement to the relief he sought, we lack jurisdiction to review that decision.
Blanc pushes back. He argues that he is challenging only the immigration judge‘s failure to inform him that he could apply for preconclusion voluntary departure—and not the Board‘s later denial of
Though the ultimate revocation of those petitions was an unreviewable discretionary decision, we held that we could still consider whether the agency had complied with applicable procedures when revoking them. Id. So, the argument goes, if Blanc is challenging the immigration judge‘s failure to follow the proper administrative proceedings, and not the Board‘s ultimate denial of discretionary relief, we have jurisdiction to review his petition.
But Blanc‘s case is different. In Kurapati, the alleged procedural violation was one that no other administrative body reviewed. Id. at 1258–59. In fact, the Administrative Appeals Office of the U.S. Customs and Immigration Services said that Kurapati could not raise his claim in an agency appeal at all. Id. at 1259. Here, the Board‘s intervening—and independent—decision has already responded to the earlier procedural error that Blanc claims. The Board determined, under de novo review, that preconclusion voluntary departure was not warranted for Blanc—regardless of what the immigration judge did or did not do before. In other words, even if Blanc had applied for and received this relief before the immigration judge, the Board has said that it would have rejected it all the same. What‘s more, the Board has already addressed Blanc‘s procedural claim, and determined that any failure to advise was “immaterial” because Blanc‘s case does not warrant this relief. Once the Board addressed this alleged error and made its own discretionary decision to deny Blanc preconclusion voluntary departure,
To put it simply, there is nothing left for us to correct in Blanc‘s case. The Board has already considered and rejected Blanc‘s request for preconclusion voluntary departure. Even if we gave Blanc the chance to apply for preconclusion voluntary departure before the immigration judge—and even if the immigration judge granted it—the Board, which would again be tasked with reviewing his case, has already said that he should not receive preconclusion departure. The wisdom of that decision is not ours to consider.
A petitioner may not sidestep the jurisdictional bar in
* * *
Though the immigration judge failed to inform Blanc that he could apply for preconclusion voluntary departure, the Board considered this form of relief itself on appeal. It decided—independently and as a matter of its own discretion—that Blanc‘s case did not warrant this relief. And by issuing its own decision, the Board effectively intervened to cut off our jurisdiction over Blanc‘s claim of error.
Accordingly, we DISMISS Blanc‘s petition.
The immigration judge (IJ) neglected to inform Maxime Blanc, who was representing himself, of the availability of preconclusion voluntary departure, despite his apparent eligibility for that relief. Notwithstanding the IJ‘s failure to comply with agency regulations, the Board of Immigration Appeals (Board) upheld Blanc‘s removal. The Board ruled that the IJ did not err in exercising its discretion to deny the relief he did apply for—postconclusion voluntary departure—and that the IJ‘s failure to inform Blanc of preconclusion voluntary departure was immaterial. Today the majority holds that in doing so, the Board acted within its own “independent discretion” to conclude that “preconclusion voluntary departure was not warranted in Blanc‘s case“—thus “cut[ting] off any jurisdiction we might have had to consider Blanc‘s petition.” Maj. Op. at 2. I disagree.
The Board determined that the IJ did not “exceed[] his authority in determining that the respondent did not merit a favorable exercise of discretion for . . . voluntary departure.” It thus concluded that the IJ did not err in denying Blanc‘s application for postconclusion voluntary departure, and further stated:
Voluntary departure is a discretionary form of relief, whether pre-conclusion or post-conclusion voluntary departure. . . . Since the respondent did not demonstrate that he warranted a discretionary grant of voluntary departure, it was immaterial that the Immigration Judge did not inform him of the potential availability of pre-conclusion voluntary departure.
This court does not have jurisdiction over “[denials of discretionary relief]” in immigration proceedings. INA § 242(a)(2)(B),
My understanding of this case differs from the majority‘s in that I do not believe the Board was in fact “enforc[ing] its own judgment on the question.” Id. I do not read the Board‘s statement as an exercise of independent discretion. The Board never determined that “preconclusion voluntary departure was not warranted.” Id. (emphasis added). So the jurisdictional bar never attached.
I largely agree with Judge Martin‘s concurrence to this court‘s prior order granting a stay of Blanc‘s removal pending this appeal. See Blanc v. U.S. Att‘y Gen., 2019 U.S. App. LEXIS 24540 at *2–4 (11th Cir. Aug. 16, 2019) (Martin, J., concurring). The Board used the term “voluntary departure,” rather than specifying “preconclusion voluntary departure.” That, taken with the Board‘s use of the past tense, suggests that it was reviewing only the IJ‘s previous determination that Blanc did not qualify for postconclusion relief. Id. at *3. Had the Board been making its own decision about preconclusion relief, I imagine it would have said something along the lines of “Blanc has not demonstrated that he warranted a discretionary grant of preconclusion voluntary departure,” as opposed to “[Blanc] did not demonstrate that he warranted a discretionary grant of voluntary departure.” Id. at *4. At the very least, I expect that the Board would have engaged in some level of independent analysis of the issue if it were in fact exercising its own discretion to determine that Blanc
Turning to the merits, I believe that the Board erred in concluding that the IJ‘s failure to advise Blanc of the availability of preconclusion relief was “immaterial.”1 “Agencies must respect their own procedural rules and regulations.” Gonzales v. Reno, 212 F.3d 1338, 1349 (11th Cir. 2000) (per curiam). This is especially true where, as in Blanc‘s case, an individual‘s rights are affected. See Romano-Murphy v. Comm‘r, 813 F.3d 707, 718 (11th Cir. 2016). Here, agency regulations require that the IJ inform the person subject to removal of his apparent eligibility to apply for preconclusion voluntary departure.
Blanc has not engaged in terrorist activities or been convicted of aggravated felonies for the purpose of determining eligibility for preconclusion voluntary relief. See INA § 101(a)(43),
The Board did not make a discretionary decision that preconclusion voluntary departure was not warranted in Blanc‘s case, and it erroneously held that the IJ‘s failure to inform Blanc of his apparent eligibility for preconclusion relief was immaterial. I would reverse the order of removal and remand this case with instructions that Blanc be afforded the opportunity to apply for preconclusion voluntary departure.