Beruflich Dokumente
Kultur Dokumente
JAI NARINE,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney
General,
Respondent.
No. 08-1299
Petition for review granted; vacated and remanded by published opinion. Judge Gregory wrote the opinion, in which
Judge Duncan and Senior Judge Alarcn joined.
COUNSEL
ARGUED: Alexandru Ionut Craciunescu, INTERNATIONAL BUSINESS LAW FIRM, P.C., Washington, D.C.,
NARINE v. HOLDER
OPINION
GREGORY, Circuit Judge:
Petitioner Jai Narine asks this Court to review the Board of
Immigration Appeals ("BIA") denial of his motion for reconsideration of its decision dismissing his appeal for lack of
jurisdiction. The BIA found that it lacked jurisdiction to consider both Narines initial appeal and his motion for reconsideration because he had waived his appellate rights by
accepting voluntary departure in lieu of removal. The record,
however, clearly demonstrates that any waiver by Narine did
not meet the standard of being knowing and intelligent, and
we therefore vacate the BIAs order denying Narines motion
to reconsider and remand this case for proceedings consistent
with this opinion.
I.
Narine, a citizen of Guyana, entered the United States via
Miami International Airport in June 2001, using fraudulent
travel documents bearing the name "Rishi Rambial." He has
since married a naturalized citizen, with whom he has one
child. Although his wifes I-130 petition for an alien relative
was approved in April 2005, Narines own I-485 application
for adjustment of status was denied.
NARINE v. HOLDER
Yes.
...
Q. Okay. And, this is the only request that youre
making on the court, right?
A:
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No.
Q: If you say no, then youre not eligible for voluntary departure and this stays at the proceeding. My
question to be clear is if I sign an order that says you
can leave voluntarily do you agree that this is the end
of this court case?
A:
Yes.
The INA recognizes two types of voluntary departure. So-called "preconclusion voluntary departure" allows an alien charged with removability
to depart the country voluntarily prior to the completion of removability
proceedings, pursuant to 8 U.S.C. 1229c(a)(1) (2006). "Post-conclusion
voluntary departure" allows an IJ to enter an order granting voluntary
departure at the conclusion of removal proceedings, where the conditions
of 8 U.S.C. 1229c(b) (2006) are met.
The IJ did not specify which type of voluntary departure Narine was
being given, but it would seem that Narine was only eligible for postconclusion voluntary departure because the IJ had already found him
removable at his January 11, 2006, hearing. Nonetheless, in its dismissal
of Narines initial appeal, the BIA indicated that the IJ had determined that
Narine was eligible for pre-conclusion voluntary departure under 8 U.S.C.
1229c(a) (2006). While we are not clear on what basis the BIA reached
this conclusion, neither Narine nor the Government has explicitly disputed
the BIAs finding that Narine was given pre-conclusion voluntary departure (although Narine argues that the IJs decision to grant this type of voluntary departure was in error). Thus, we will assume for purposes of this
petition that Narine was given pre-conclusion voluntary departure and we
will use the terms "pre-conclusion voluntary departure" and "voluntary
departure" interchangeably in this opinion.
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Narine would be waiving his right to appeal by accepting voluntary departure, and at no point in her colloquy with Narine
did the IJ discuss Narines appellate options. Furthermore,
Narine was a legally unsophisticated party who was not represented by counsel and could not be expected to understand the
implication of the IJs shorthand use of the word "final."
III.
Because the record demonstrates that Narine did not knowingly and intelligently waive his right to appeal before the IJ,
we find that the BIA abused its discretion in denying Narines
motion to reconsider for lack of jurisdiction. Accordingly, we
grant Narines petition for review, vacate the BIAs order
denying Narines motion to reconsider, and remand to the
BIA for further proceedings consistent with this decision.
PETITION FOR REVIEW GRANTED;
VACATED AND REMANDED