Jai Narine, a citizen of Guyana, sought to review the Board of Immigration Appeals (BIA) denial of his motion for reconsideration after the BIA dismissed his appeal due to a lack of jurisdiction. The BIA determined it lacked jurisdiction because Narine had waived his appellate rights by accepting voluntary departure in lieu of removal. However, the court found that Narine's waiver did not meet the criteria for being knowing and intelligent. Consequently, the BIA's order was vacated, and the case was remanded for further proceedings.
Narine entered the U.S. in June 2001 using fraudulent documents and later married a U.S. citizen, but his application for adjustment of status was denied. Following removal proceedings initiated by the Government in May 2005, an immigration judge (IJ) ruled Narine removable under Section 212 (a)(6)(A)(i) of the Immigration and Nationality Act for failing to prove lawful admission. During a subsequent hearing on April 10, 2006, Narine, represented by attorney Steffanie Lewis, indicated he wished to withdraw representation due to economic reasons. Lewis informed the IJ that Narine had been counseled on the implications of accepting voluntary departure. Despite the IJ's questioning, which aimed to ascertain Narine’s understanding of the finality of accepting voluntary departure, Narine affirmed that he intended this as the final decision in his case, resulting in the IJ granting him voluntary departure.
Two types of voluntary departure are recognized under the Immigration and Nationality Act (INA): "pre-conclusion voluntary departure," which allows an alien to leave the U.S. before removability proceedings are completed, and "post-conclusion voluntary departure," granted at the end of such proceedings if certain conditions are met. The Immigration Judge (IJ) did not clarify which type Narine was granted, but it appears he was only eligible for post-conclusion voluntary departure due to the IJ's prior finding of removability. However, the Board of Immigration Appeals (BIA) suggested that Narine was given pre-conclusion voluntary departure, a conclusion not explicitly disputed by either Narine or the Government, though Narine claimed it was erroneous.
On May 8, 2006, Narine appealed to the BIA against the IJ's finding of removability, but his appeal was dismissed on November 16, 2007, on the grounds that he accepted pre-conclusion voluntary departure as the final decision and waived his right to appeal. The BIA noted that Narine's request for voluntary departure was made with the understanding that it would be final, even after his counsel withdrew. Narine later filed a motion for reconsideration with the BIA, asserting he had not waived his appellate rights, supported by an affidavit from his former counsel denying such advice. The BIA denied this motion on February 12, 2008, reiterating that Narine had waived his right to appeal during the removal hearing.
Narine has since petitioned the Court for review of the BIA's denial of his motion to reconsider, asserting jurisdiction under 8 U.S.C. 1252 and claiming the BIA abused its discretion in its decision. Notably, the BIA's assertion that Narine was represented at the April 10 hearing is contradicted by the record, where Narine was indeed unrepresented, indicating potential arbitrary action by the BIA in denying the motion.
The BIA denied Narine’s motion to reconsider on the grounds that he had waived his right to appeal, which the IJ allegedly conditioned on his acceptance of pre-conclusion voluntary departure. However, the transcript from the April 10 hearing does not mention any waiver of appeal, nor does it indicate that such a waiver was a requirement for voluntary departure. Although the IJ stated her decision would be "final," this does not equate to a clear warning about waiving the right to appeal. The BIA's decision contradicts its precedent and federal court rulings, which establish that waivers of appellate rights must be made "knowingly and intelligently." The Government argued that Narine understood the implications of his acceptance because he was previously counseled about the limitations of voluntary departure and affirmed his understanding of the IJ's final decision. However, Narine's attorney, Lewis, denied discussing the waiver with him. The BIA’s precedent requires that an IJ explicitly inform an unrepresented alien that waiving the right to appeal is necessary for voluntary departure. The Government’s claim that Narine understood the consequences based on his affirmative response to the IJ’s statement about a "final decision" is insufficient, especially considering his status as an unrepresented, non-native English speaker. The vague reference to prior counsel's advice does not meet the stringent requirements for a waiver of appeal.
In the case of In re Rodriguez-Diaz, the BIA clarified that the shorthand question posed by Immigration Judges (IJs) regarding whether a decision is accepted as "final" can lead to a waiver of the right to appeal, particularly for aliens represented by counsel. However, this shorthand may be misunderstood by unrepresented aliens, who may not grasp that an affirmative response equates to an irrevocable waiver of appeal rights. The BIA emphasized the necessity for a clear explanation of waiver rights, especially for unrepresented individuals. In the referenced case, the IJ failed to inform Narine that accepting voluntary departure would waive his appeal rights and did not discuss Narine's appellate options. Given Narine's lack of legal representation and understanding, the waiver was deemed neither knowing nor intelligent. Consequently, the BIA was found to have abused its discretion in denying Narine's motion to reconsider, leading to the decision to grant Narine's petition for review, vacate the BIA's denial, and remand for further proceedings.
