Leslie Camick v. Jefferson B. Sessions, III , 891 F.3d 1101 ( 2018 )

United States Court of Appeals
For the Eighth Circuit
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No. 16-3506
No. 17-2089
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Leslie Lyle Camick
lllllllllllllllllllllPetitioner
v.
Jefferson B. Sessions, III, Attorney General of the United States
lllllllllllllllllllllRespondent
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National Immigration Project of the National Lawyers Guild
lllllllllllllllllllllAmicus on Behalf of Petitioner
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Petition for Review of Orders of the
Board of Immigration Appeals
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Submitted: February 15, 2018
Filed: June 8, 2018
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Before LOKEN, BENTON, and ERICKSON, Circuit Judges.
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LOKEN, Circuit Judge.
Leslie Lyle Camick, a Canadian native and citizen, petitions for review of two
decisions of the Board of Immigration Appeals (BIA): in No. 16-3506, the BIA’s
decision dismissing his appeal from the Immigration Judge’s (IJ’s) decision granting
voluntary departure with an alternate order of removal; in No. 17-2089, the BIA’s
order denying reconsideration of the first decision. We deny both petitions.
I. Background.
Camick entered the United States in 2006 using the name and birth certificate
of his deceased younger brother. In 2011, represented by counsel, Camick conceded
removability at a hearing before an Immigration Judge (IJ) in New Jersey, admitting
that he was removable for procuring admission by misrepresentation and lacking
valid entry documents. Removal proceedings were suspended when Camick was
detained in the District of Kansas on criminal charges related to use of his brother’s
identity. A jury convicted Camick on all counts; the Tenth Circuit Court of Appeals
affirmed an obstruction of justice conviction but reversed the other counts. United
States v. Camick, 796 F.3d 1206, 1212-13, 1222-23 (10th Cir.), cert. denied, 136
S. Ct. 601 (2015).
After Camick was released from custody in the criminal proceedings, the
Department of Homeland Security (DHS) detained him in Kansas. In December
2015, a New Jersey IJ granted the government’s motion to change venue of the
removal proceedings to Kansas City, Missouri. Camick appeared pro se before a
Kansas City IJ in January 2016. He stated he was pursuing three avenues for relief
from removal and requested release from DHS custody under a reduced bond. The
IJ set bond in the amount of $7,500 and scheduled a removal hearing for February 11;
both parties waived appeal of that ruling. At the end of the hearing, the IJ commented
to Camick, “you’re not the typical pro se litigant, sir. You’ve had a lot of practice it
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seems.” He replied, “Yes, absolutely. I’ve been an avid student of Immigration law
for the past four years now.”1
At the February 11 hearing, Camick had not obtained relief from removal.
After the IJ declined his request for work authorization, Camick said he now could
not afford a $7,500 bond. The government opposed a continuance, urging the IJ to
enter an order of removal unless Camick requested voluntary departure, noting he
could pursue a nonimmigrant visa application after removal to Canada. The IJ asked
Camick if he would be interested in “pre-conclusion” voluntary departure. The IJ
explained this would allow him to depart the United States without a removal order
and return immediately if he secured a visa, avoiding the ten-year bar on reentering
the United States after removal, but he would have to “waive appeal today of all
issues.” Camick accepted pre-conclusion voluntary departure and advised he would
have the needed travel funds arranged from Canada. The government stated it would
waive appeal of this ruling. The IJ declared, “it’s now a final decision.” The IJ
issued a written order granting Camick voluntary departure, giving him until March
3, 2016 to depart, entering an alternate order of removal to Canada, and stating that
both parties had waived appeal. Court staff served the order on Camick the same day,
February 11.
Camick did not voluntarily depart on March 3. He did not ask the IJ for more
time to do so, see 8 C.F.R. § 1240.26(e) (IJ may grant up to 120 days for pre-
1
Camick’s pro se pleadings and arguments to the IJ, to the BIA, and to this
court, and his counseled briefs in the second petition for review, repeatedly state that
he is entitled to special treatment as a pro se litigant dealing with the complex world
of immigration law. We reject these entreaties because they are factually without
merit. Our review of Camick’s pro se pleadings, briefs, substantive arguments, and
procedural maneuvers convince us that, as he told the IJ in January 2016 (before
agreeing on February 11 to the pre-conclusion voluntary departure order at issue), he
is a pro se litigant who was remarkably well versed in immigration law and practice.
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conclusion voluntary departure), nor file a motion to reopen or reconsider the grant
of voluntary departure, see 8 C.F.R. § 1240.26(e)(1).2 On March 3, DHS served
Camick a Warning for Failure to Depart, Form I-229(a), listing February 18, 2016,
as the date the Kansas City IJ’s order of removal became final.3 On March 12,
Camick delivered a notice of appeal of the IJ’s February 11 decision to detention
facility officials for mailing to the BIA. In a lengthy brief, he withdrew his
concession of removability and consent to voluntary departure, challenged the change
of venue to Kansas City, asserted he was entitled to interim work authorization, and
claimed his New Jersey attorney was ineffective for “failing to proficiently analyze
his immigration case and . . . actively pursue a defense.” He accused the detention
facility of impermissibly limiting his right to make photocopies and stated he was
confused about whether the thirty days to file a notice of appeal did not begin until
February 18, based on the Form I-229(a) Warning. The BIA received the notice of
appeal on March 17. Camick was removed to Canada on March 23.
2
On March 1, Camick filed with the immigration court a Notice of Withdrawal
of Consent to Voluntary Departure, based upon the failure of DHS to deliver his birth
certificate that was seized when he was arrested in March 2013, which made him
unable to apply for a Canadian passport needed to voluntarily depart. There is no
authority in the Immigration and Nationality Act (INA) or in the Attorney General’s
regulations for an alien to unilaterally withdraw from a pre-conclusion voluntary
departure order. Camick did not apply to the IJ or BIA for more time to depart, or file
a motion to reopen or reconsider the voluntary departure order before the departure
period expired, the proper way to assert his claim that the appeal waiver was invalid
because the IJ did not adequately explain it. See 8 C.F.R. § 1240.26(e)(1). The
Notice of Withdrawal had no substantive or procedural validity, so we disregard it.
3
February 18 was the day Camick petitioned the Third Circuit for review of the
New Jersey IJ’s venue order. Filing any judicial challenge to a voluntary departure
order terminates the grant of voluntary departure; the alternate order of removal “shall
immediately take effect,” but that does not affect “the date that the [voluntary
departure] order . . . became administratively final.” 8 C.F.R. § 1240.26(i). The
Third Circuit dismissed Camick’s petition for lack of jurisdiction. See Order, Camick
v. Attorney Gen. of the U.S., No. 16-1355 (3d Cir. Apr. 28, 2016).
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On July 28, 2016, the BIA dismissed Camick’s appeal for three reasons: (i) he
waived his right to appeal the IJ’s decision at the February 11 removal hearing; (ii)
his ineffective-assistance claim did not comply with the requirements of Matter of
Lozada, 19 I. & N. Dec. 637 (BIA 1988); and (iii) the appeal was untimely because
the IJ’s voluntary departure and alternative removal order became final for appeal
purposes with the IJ’s February 11 decision, and Camick’s notice of appeal was
received by the BIA on March 17, more than thirty days later. Camick timely filed
a pro se petition for review of the BIA decision in this court and a pro se motion to
reconsider with the BIA. Both filings attacked the three reasons given by the BIA in
dismissing the appeal. In the motion to reconsider, Camick argued the BIA “should
in good faith and fair play, accept the Appeal of March 12/17, 2016 by Certification.”
The BIA denied the motion to reconsider. The BIA agreed with Camick that
he did not knowingly waive his right to appeal but concluded that any error in
concluding otherwise was not material because Camick’s appeal was untimely. After
expressly considering Camick’s allegations that the detention facility impermissibly
denied him photocopy and law library access and delayed mailing his notice of
appeal, the BIA concluded that Camick failed to establish it should exercise its self-
certification authority to accept Camick’s appeal. See 8 C.F.R. § 1003.1(c).4 The
BIA denied reconsideration of the ineffective assistance claim because Camick “has
not explained how the attorney’s representation is relevant to his motion” to
reconsider dismissal of his appeal from the February 2016 voluntary
departure/removal order.5
4
In Liadov v. Mukasey, we held that we lack jurisdiction to review the BIA’s
discretionary refusal to self-certify because “the [self-certification] regulation
provides no meaningful standard for measuring the agency’s exercise of discretion.”
518 F.3d 1003, 1010 (8th Cir. 2008) (quotation omitted); accord Park v. Attorney
Gen. of the U.S., 846 F.3d 645, 653 (3d Cir. 2017).
5
Counsel petitioned to withdraw from representing Camick in January 2014,
which a New Jersey IJ granted. In his motion to withdraw, counsel cited challenges
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Camick filed a separate petition for review of the denial of reconsideration.
We consolidated these two petitions for review, as the INA mandates. See 8 U.S.C.
§ 1252(b)(6); Stone v. I.N.S., 514 U.S. 386, 405-06 (1995). Because Camick
petitioned for review of the initial decision, our review is not limited to whether the
denial of reconsideration was an abuse of discretion. See Boudaguian v. Ashcroft,
376 F.3d 825, 828 (8th Cir. 2004). However, a motion to reconsider, unlike a motion
to reopen, is based upon “errors of fact or law in the prior Board decision.” 8 C.F.R.
§ 1003.2(b)(1). Thus, the issues presented in the two petitions for review necessarily
overlap, and we will treat the BIA’s opinion denying reconsideration as a further
explication of its initial decision.
In the petitions for review, Camick argues the BIA should have equitably tolled
the filing deadline, or accepted his appeal by self-certification, because he exercised
diligence in filing a timely appeal, and circumstances beyond his control explained
his late filing. He argues we must remand to the BIA because it did not address his
vague invocation of the “doctrine of Equitable Tolling” in its orders.6 Alternatively,
he argues his appeal was timely because the thirty-day filing period began on
February 18, 2016, when he petitioned for review of the New Jersey IJ’s venue order.
to representing Camick arising from his criminal charges and alleged that Camick
wished to pursue inapplicable forms of relief and failed to pay the attorney.
6
This argument is based on the assertion that the filing deadline in 8 C.F.R.
§ 1003.38(b) is “non-jurisdictional and thus not mandatory.” In Liadov, we stated
that the BIA has considered the deadline mandatory for more than fifty years, and we
ruled that this was not an abuse of discretion. 518 F.3d at 1009-10. Here, by relying
on its decision in Matter of Liadov, 23 I. & N. Dec. 990 (BIA 2006), which we
affirmed, the BIA expressed its continued view that the filing deadline is mandatory
and the BIA will accept untimely appeals only under its discretionary self-
certification authority. See Liadov, 518 F.3d at 1009-11. The BIA had no obligation
to further reiterate its consistent position.
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Camick also argues the BIA erred in denying his motion to reconsider the denial of
his claim that his New Jersey counsel provided ineffective assistance.
II. Judicial Review of Voluntary Departure Orders.
“Voluntary departure is a discretionary form of relief that allows certain
favored aliens—either before the conclusion of removal proceedings or after being
found deportable—to leave the country willingly.” Dada v. Mukasey, 554 U.S. 1, 8
(2008). Voluntary departure “allows the Government and the alien to agree upon a
quid pro quo.” Id. at 11. The government benefits from an expedited, less expensive
departure process and avoids departure litigation. The alien avoids detention while
removal travel is arranged, can select the country of destination, and “of great
importance, by departing voluntarily . . . facilitates the possibility of readmission.”
Id. “Upon granting a request made for voluntary departure either prior to the
completion of proceedings or at the conclusion of proceedings, the immigration judge
shall also enter an alternate order o[f] removal.” 8 C.F.R. § 1240.26(d).
This case involves a pre-conclusion voluntary departure order authorized by
8 U.S.C. § 1229c(a). The entry of such an order is a final “decision” of the IJ, which
in a removal proceeding must include “a finding as to . . . deportability.” 8 C.F.R.
§ 1240.12(a). To establish a basis for a final decision, the Attorney General’s
regulations set forth preconditions that must be satisfied before the IJ may enter a pre-
conclusion voluntary departure order:
(1) the voluntary departure request must be made prior to or at the
master calendar hearing at which the case is initially calendared for a
merits hearing; (2) the alien must not seek any other form of relief and
must withdraw any outstanding requests for relief; (3) the alien must
concede removability; (4) the alien must waive appeal of all issues; and
(5) the alien must not have been convicted of certain crimes.
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In re Ocampo-Ugalde, 22 I. & N. Dec. 1301, 1303 (BIA 2000); see 8 C.F.R.
1240.26(b)(1)(i). “Except when certified to the Board, the decision of the
Immigration Judge becomes final upon waiver of appeal or upon expiration of the
time to appeal if no appeal is taken whichever occurs first.” 8 C.F.R. § 1003.39; see
Kohwarien v. Holder, 635 F.3d 174, 179 (5th Cir. 2011).
The immigration laws grant courts of appeals exclusive jurisdiction to review
a “final order of removal.” 8 U.S.C. § 1252(a)(1), (5). An order of removal is the
order of an officer to whom the Attorney General has delegated authority “concluding
that the alien is [removable] or ordering [removal].” § 1101(a)(47)(A). It is well
established that a conditional order of removal unless the alien departs within the
voluntary departure deadline is, when entered, a judicially reviewable final order of
removal. Foti v. I.N.S., 375 U.S. 217, 219 n.1 (1963). “Congress granted power to
the courts of appeals to review final orders of removal, not the enforcement of final
orders of removal.” Casillas v. Holder, 656 F.3d 273, 275 (6th Cir. 2011). “[T]he
‘final’ order might do no more than establish that the alien is removable . . . .
[V]oluntary departure . . . has no effect at all on the removability of the alien—it
affects only the manner of [his] exit.” Almutairi v. Holder, 722 F.3d 996, 1001 (7th
Cir. 2013). Indeed, “a court of appeals lacks jurisdiction to entertain a request to
reinstate voluntary departure.” Ngarurih v. Ashcroft, 371 F.3d 182, 193 (4th Cir.
2004); see 8 U.S.C. § 1252(a)(2)(B) (“no court shall have jurisdiction to review—(i)
any judgment regarding the granting of relief under section . . . 1229c”).
III. Discussion.
The focus of Camick’s petitions for review is the BIA’s decision to dismiss his
direct appeal from the IJ’s administratively final pre-conclusion voluntary departure
order because the appeal was not timely filed under the Attorney General’s procedural
regulations. See 8 C.F.R. § 1003.38(b) (“The Notice of Appeal . . . shall be filed
directly with the [BIA] within 30 calendar days after the stating of an [IJ’s] oral
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decision or the mailing of an [IJ’s] written decision.”); 8 C.F.R. § 1003.3(a)(1) (“An
appeal is not properly filed unless it is received at the Board . . . within the time
specified in [§ 1003.38].”). We have jurisdiction to review this question of law under
8 U.S.C. § 1252(a)(2)(D). In deciding most petitions to review BIA decisions, this
is a critical issue because “an alien whose appeal to the BIA was dismissed as
untimely is precluded from judicial review of the merits of the removal order because
he failed to properly exhaust an available administrative remedy.” Liadov, 518 F.3d
at 1006. However, in the unique circumstances of this voluntary departure order, we
conclude that the answer to the untimely appeal question is immaterial to our decision
to deny Camick’s petitions for review.
In Dada, the Supreme Court considered whether an alien who agreed to a post-
conclusion voluntary departure order “must adhere to that election and depart within
the time prescribed, even if doing so causes the alien to forgo a ruling on a pending,
unresolved motion to reopen the removal proceedings.” 554 U.S. at 4. The alien
sought to withdraw his request for voluntary departure two days before expiration of
the voluntary departure period. Id. at 6. Resolving a conflict in the circuits, the Court
held that the alien was entitled to limited relief from this dilemma:
We hold that, to safeguard the right to pursue a motion to reopen
for voluntary departure recipients, the alien must be permitted to
withdraw, unilaterally, a voluntary departure request before expiration
of the departure period, without regard to the underlying merits of the
motion to reopen. As a result, the alien has the option either to abide by
the terms, and receive the agreed-upon benefits, of voluntary departure;
or, alternatively, to forgo those benefits and remain in the United States
to pursue an administrative motion.
If the alien selects the latter option, he or she gives up the
possibility of readmission and becomes subject to the IJ’s alternative
order of removal. See 8 CFR § 1240.26(d).
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Id. at 21. The Court explained: “the rule we adopt does not alter the quid pro quo
between the Government and the alien. If withdrawal is requested prior to expiration
of the voluntary departure period, the alien has not received benefits without costs;
the alien who withdraws . . . is in the same position as an alien who was not granted
voluntary departure in the first instance.” Id. at 21-22.
We conclude the Court would apply these same principles to the somewhat
different circumstances surrounding a pre-conclusion voluntary departure order. In
this situation, the IJ has not entered a final order of removal; rather, the alien has
conceded removability and waived all defenses and requests for relief from removal.
The BIA has not affirmed the IJ’s order because the alien waived his right to appeal
it. But the consequences of the alien failing to depart voluntarily in the time allowed
are the same for both pre-conclusion and post-conclusion orders: “An order of
removal made by the immigration judge at the conclusion of [removal] proceedings
. . . shall become final . . . (f) If an immigration judge issues an alternate order of
removal in connection with a grant of voluntary departure, upon overstay of the
voluntary departure period.” 8 C.F.R. § 1241.1(f) (emphasis added); see Casillas,
656 F.3d at 276.
Like the alien who agreed to a post-conclusion voluntary departure order in
Dada, there were procedures available to Camick to withdraw from his pre-conclusion
order while it was still executory, that is, before expiration of the voluntary departure
period. Most commonly, an alien who concludes that the process was procedurally
unfair will file a motion with the IJ or a timely appeal to the BIA alleging that the
appeal waiver was not knowing or voluntary. If he prevails, the BIA may remand to
the IJ to permit the respondent to reapply for voluntary departure, or to “entertain
other requests for relief” should the alien not seek voluntary departure. Ocampo, 22
I. & N. Dec. at 1305 & n.3; compare In re Rodiguez-Diaz, 22 I. & N. Dec. 1320,
1323-24 (BIA 2000). Alternatively, the alien may ask the IJ or BIA to extend the
voluntary departure period up to the maximum 120 days. 8 C.F.R. § 1240.26(e)(1).
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By contrast, when an alien who agreed to a pre-conclusion or post-conclusion
voluntary departure order overstays the voluntary departure period, his agreement
with the government is no longer executory -- he has received the voluntary departure
benefit offered, and the government is entitled to enforce its side of the bargain, the
alternative removal order. Here, Camick made no valid attempt to withdraw from the
executory pre-conclusion order by challenging the appeal waiver or seeking
rescission on some other ground. After overstaying the allowed voluntary departure
period to which he agreed, he filed a lengthy appeal to the BIA challenging the merits
of the alternative removal order. But by that time, the alternative order was effective
and enforceable, and all challenges to the merits of that order were foreclosed by
Camick’s concession of removability and waiver of all issues in a pre-conclusion
voluntary departure order that was no longer executory. As the Supreme Court said
in Dada, “among the substantive burdens imposed upon the alien when selecting
voluntary departure is the obligation to arrange for departure, and actually depart,
within the [prescribed] period.” 554 U.S. at 19 (emphasis added).
In these circumstances, we conclude that Camick’s belated appeal to the BIA
was untimely because it was filed after termination of the voluntary departure period,
whether or not it was timely filed under the BIA’s procedural regulations. Therefore,
any error by the BIA in not taking up this futile appeal of the alternative removal
order on the merits was harmless, and the petitions for judicial review must be denied.
“Congress’ intent in adopting and then amending the INA was to expedite both the
initiation and the completion of the judicial review process.” Stone, 514 U.S. at 400.
The petitions for review are denied.
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