Maxime P. Blanc v. U.S. Attorney General

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-12508
________________________
Agency No. A043-837-330
MAXIME P. BLANC,
Petitioner,
versus
UNITED STATES ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(May 11, 2021)
Before WILSON, GRANT, and TJOFLAT, Circuit Judges.
GRANT, Circuit Judge:
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
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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,
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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 8
U.S.C. § 1227(a)(2)(A)(ii) for two or more convictions of crimes involving moral
turpitude, and under 8 U.S.C. § 1227(a)(2)(A)(iii) for two separate aggravated
felony convictions.
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. 8 C.F.R.
§§ 1240.11(a)(2), 1240.26(b)(1)(i)(A). In spite of this requirement, and though
Blanc rose to speak, the immigration judge postponed discussion of potential forms
of relief until a later date—perhaps once Blanc could “get a lawyer.” Absent that,
he said, they would discuss relief sometime “in the future.”
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
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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
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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 8 U.S.C. § 1252(a)(2)(B) and (C). A panel of this Court granted Blanc’s
emergency stay request on a temporary basis and carried the government’s motion
with the case.
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).
III.
The Immigration and Nationality Act gives the Attorney General discretion
to permit aliens to voluntarily leave the country at their own expense. 8 U.S.C.
§ 1229c(a)(1). This “discretionary form of relief” can be granted at two different
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stages: either before an alien’s removal proceedings conclude or after.1 Dada v.
Mukasey, 554 U.S. 1, 8 (2008). Voluntary departure is available only to aliens
who are not deportable on security grounds and who have not been convicted of an
aggravated felony. 8 U.S.C. § 1229c; 8 C.F.R. § 1240.26.
The regulations governing removal proceedings require immigration judges
to inform aliens of their “apparent eligibility” for various kinds of relief, including
preconclusion voluntary departure. 8 C.F.R. § 1240.11(a)(2). And aliens must
request preconclusion voluntary departure at or before the master calendar hearing
at which the case is scheduled for a hearing on the merits. Id.
§ 1240.26(b)(1)(i)(A). Putting those two regulations together, it means that the
immigration judge must inform aliens who are “apparently eligible” for
preconclusion voluntary departure of that fact by the end of the master calendar
hearing. In re Cordova, 22 I. & N. Dec. 966, 971 (BIA 1999).
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.” 8 C.F.R. § 1003.1(d)(3)(ii). And when
the Board considers a petitioner’s right to voluntary departure, it can review any
1 Different standards govern the grant of preconclusion voluntary departure and postconclusion
voluntary departure. Compare 8 C.F.R. § 1240.26(b) (preconclusion voluntary departure), with 8
C.F.R. § 1240.26(c) (postconclusion voluntary departure). Broadly speaking, postconclusion
voluntary departure is harder to obtain. See In re Arguelles-Campos, 22 I. & N. Dec. 811, 817
(BIA 1999). For example, an alien must be “of good moral character” to receive that form of
relief. 8 C.F.R. § 1240.26(c)(ii).
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errors made by the immigration judge below. Cf. Indrawati v. U.S. Att’y Gen., 779
F.3d 1284, 1298 (11th Cir. 2015).
As for our review, this Court lacks jurisdiction to review discretionary
denials of relief in immigration proceedings, including the denial of voluntary
departure. 8 U.S.C. § 1252(a)(2)(B). No court can review “any judgment
regarding the granting of relief under” 8 U.S.C. § 1229c. Id. § 1252(a)(2)(B)(i).
That section covers voluntary departure. Still, we do retain jurisdiction to hear
constitutional claims or questions of law. Id. § 1252(a)(2)(D). This means that we
cannot review any judgment relating to a request for voluntary departure, except to
the extent the petitioner raises colorable constitutional or legal claims. Patel v.
U.S. Att’y Gen., 971 F.3d 1258, 1283 (11th Cir. 2020) (en banc).
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 But even assuming that omission was in error, and even though Blanc did
not apply for preconclusion voluntary departure, the Board of Immigration Appeals
considered on appeal whether that kind of relief should have been granted. It
decided not, and that independent decision cuts off our jurisdiction over Blanc’s
petition. See 8 U.S.C. § 1252(a)(2)(B)(i).
2 The government now argues that Blanc was “not apparently eligible” for preconclusion
voluntary departure because he was charged with committing an aggravated felony. Whether or
not that is true, the immigration judge ultimately found that Blanc did not commit an aggravated
felony, and the government never contested this finding below. In any event, because it makes
no difference to the outcome of this appeal whether the immigration judge erred in failing to
advise Blanc that he could apply for preconclusion voluntary departure, we assume that he did.
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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
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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. 8 U.S.C.
§ 1252(a)(2)(B). The Immigration and Nationality Act strips courts of jurisdiction
over “[d]enials of discretionary relief” in immigration proceedings. Id. And that
precludes us from reviewing any judgment related to Blanc’s request for voluntary
departure unless he brings constitutional or legal claims. Patel, 971 F.3d at 1283.
Indeed, this is not the first time we have applied that jurisdictional bar to voluntary
departure. See Alvarado v. U.S. Att’y Gen., 610 F.3d 1311, 1314 (11th Cir. 2010).
We continue to take these statutory limitations seriously; after all, it is Congress
that defines our jurisdiction in the first place. See, e.g., Patel, 971 F.3d at 1272;
Bourdon v. U.S. Dep’t of Homeland Sec., 940 F.3d 537, 546 (11th Cir. 2019).
Because the Board denied Blanc preconclusion voluntary departure as a matter of
its own discretion, the Act prohibits us from reviewing its 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 that relief. He is correct that we
ordinarily have jurisdiction to hear claims that an agency failed to follow its own
regulations or procedures. See Kurapati v. U.S. Bureau of Citizenship & Immigr.
Servs., 775 F.3d 1255, 1262 (11th Cir. 2014). For example, this Court held in
Kurapati that a district court had jurisdiction to consider whether an agency
violated notice regulations when it revoked a pair of I–140 visa petitions. Id.
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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,
§ 1252(a)(2)(B) cut off our jurisdiction to hear a claim that the immigration judge
erred in failing to advise Blanc of this form of relief. Cf. Alvarado, 610 F.3d at
1314.
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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 § 1252(a)(2)(B) by
reframing a challenge to the agency’s denial of relief as a claim of procedural
error. That is especially true when the agency itself has already addressed that
error in a way that was squarely within its authority. At bottom, Blanc wants us to
give him the chance to apply for preconclusion voluntary departure—but because
the Board denied this relief itself on discretionary grounds, there is nothing left for
us to review.
* * *
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.
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WILSON, Circuit Judge, dissenting:
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.
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This court does not have jurisdiction over “[d]enials of discretionary relief”
in immigration proceedings. INA § 242(a)(2)(B), 8 U.S.C. § 1252(a)(2)(B).
According to the majority, the Board, in its above-quoted statement, made an
independent and discretionary decision to deny Blanc preconclusion voluntary
departure. Maj. Op. at 8–9. This, explains the majority, takes Blanc’s case out of
our jurisdiction; “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 we do not have the authority to
review that judgment. Id. at 2.
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
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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 did not warrant preconclusion
voluntary departure. Id. Therefore, I would hold that we have jurisdiction to
review Blanc’s petition.
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
1 We review only the Board’s decision unless the Board adopts the IJ’s reasoning. Najjar v.
Ashcroft, 257 F.3d 1262, 1283 (11th Cir. 2001). We review questions of law de novo. Id. This
includes questions—like the one before us—of whether an agency followed its own procedures.
Kurapati v. U.S. Bureau of Citizenship & Immigr. Servs., 775 F.3d 1255, 1262 (11th Cir. 2014)
(per curiam).
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his apparent eligibility to apply for preconclusion voluntary departure. 8 C.F.R.
§ 1240.11(a)(2); accord In re Cordova, 22 I. & N. Dec. 966, 971 (BIA 1999)
(“[T]he Immigration Judge must notify all [persons subject to removal] who are
apparently eligible of the availability of voluntary departure.”). Persons subject to
removal are ineligible for preconclusion relief only if they have engaged in
terrorist activities or been convicted of certain aggravated felonies. INA
§ 240B(a)(1), 8 U.S.C. § 1229c(a)(1).
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), 8 U.S.C. § 1101(a)(43) (defining aggravated
felonies). He, therefore, was apparently eligible for preconclusion voluntary
departure and the IJ was required to notify him of his eligibility. Failure to do so
was an improper deviation from procedure. The Board erroneously determined
that such error was immaterial, and improperly reasoned that the IJ exercised
discretion to deny postconclusion voluntary departure and would therefore have
exercised similar discretion to deny preconclusion voluntary departure. A
determination about postconclusion voluntary departure says nothing about
preconclusion voluntary departure. The calculus for preconclusion relief is
different from that of postconclusion relief; the bar for postconclusion voluntary
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departure is much higher.2 Had Blanc been advised of his eligibility for
preconclusion voluntary departure, he would have applied for this relief and met
the regulatory requirements. The IJ’s failure to follow agency regulations was not
immaterial.
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.
2 Persons subject to removal are ineligible for postconclusion relief if they lack “good moral
character” or cannot pay to leave the country. INA § 240B(b)(1)(B), 8 U.S.C. § 1229c(b)(1)(B).
By contrast, individuals are generally ineligible for preconclusion relief only if they have
engaged in terrorist activities or been convicted of certain aggravated felonies. INA
§ 240B(a)(1), 8 U.S.C. § 1229c(a)(1).
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