Kandamar v. Gonzales

• Citation: 464 F.3d 65
• Decision Date: 26 September 2006
• Docket Number: No. 05-2523.,05-2523.
• Parties: Abdelaziz KANDAMAR, Petitioner, v. Alberto R. GONZALES, United States Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

464 F.3d 65

Abdelaziz KANDAMAR, Petitioner, v. Alberto R. GONZALES, United States Attorney General, Respondent.

No. 05-2523.

United States Court of Appeals, First Circuit.

Submitted August 2, 2006.

Decided September 26, 2006.

COPYRIGHT MATERIAL OMITTED

William P. Joyce, on brief, for petitioner.

Leslie McKay, Senior Litigation Counsel, Office of Immigration Litigation, U.S. Department of Justice, Peter D. Keisler, Assistant Attorney General, and Linda S. Wernery, Assistant Director, on brief for respondent.

Before BOUDIN, Chief Judge, SELYA, Circuit Judge, and SARIS,^* District Judge.

SARIS, District Judge.

Petitioner Abdelaziz Kandamar, a native and citizen of Morocco, seeks review of an order of the Board of Immigration Appeals ("BIA") dismissing an appeal of a final order of removal. In its order, the BIA affirmed the decision of the Immigration Judge ("IJ") denying Petitioner's motion to suppress evidence taken by the Department of Homeland Security ("DHS")¹ at the special registration interview under the National Security Entry—Exit Registration System ("NSEERS"). Kandamar claims that NSEERS violated his equal protection and due process rights. In the alternative, Kandamar asserts that the IJ erred in denying the application for voluntary departure because during the special registration DHS had taken Kandamar's expired passport, which was allegedly necessary to obtain a valid travel document. After careful review of the record, we DENY the petition for review.

I. BACKGROUND

A. Facts and Procedural History

Petitioner Kandamar, a native and citizen of Morocco, entered the United States as a nonimmigrant B-2 visitor on April 28, 1999. He was authorized to remain in the country until May 23, 1999. Kandamar overstayed his visa. He has no criminal history.

On August 12, 2002, the Department of Justice issued an NSEERS notice for the registration of certain young male nonimmigrant aliens from designated countries, including Morocco. 67 Fed.Reg. 70526 (Nov. 22, 2002). The NSEERS notice required these nonimmigrants to appear before, register with, answer questions from, and present documents, including a passport and an I-94 card, to DHS. Id. at 70527. The NSEERS notice also specified that DHS conduct the interview under oath and record answers. Id.

On January 15, 2003, Kandamar reported to the John F. Kennedy Federal Building in Boston without counsel to comply with the special registration procedures under the newly-issued NSEERS notice. As instructed, he brought his passport which had expired, and his I-94 departure record. DHS officers took these documents. At the conclusion of the interview, Kandamar was placed into removal proceedings and charged with removability under 8 U.S.C. § 1227(a)(1)(B) for remaining longer than permitted following admission as a nonimmigrant visitor. He was issued a Notice To Appear.

The IJ continued Kandamar's case twice so that he could retain counsel. On July 29, 2003, Kandamar appeared at a hearing with counsel, and the IJ continued the case again at the request of counsel. On August 11, 2003, Kandamar filed a three-page motion to suppress the evidence obtained by DHS "by unlawful search and seizure," alleging that NSEERS constitutes racial profiling and discrimination based on national origin; violates substantive due process because its use "to entrap nationals of certain countries" is fundamentally unfair; and violates equal protection by treating legal and illegal entrants differently.

At the hearing on August 12, 2003, Kandamar denied removability. Kandamar's counsel challenged the constitutionality of NSEERS and, alternatively, asked for voluntary departure. Stating that Kandamar's passport had expired, he explained: "However, the Government has [his] passport and the Moroccan Consulate won't give him a new passport without the old passport." After setting a date for a hearing on the merits of the motion to suppress, the IJ returned to the issue of voluntary departure:

Q. So again, at the conclusion of the merits hearing though, I will not be able to grant—

A. I understand.

Q. —voluntary departure if he does not have a valid document, so—

A. I mean, he can—

Q. —just so you're aware of that.

A. —somehow work it out with the Moroccans.

Q. I don't know, but I'm just saying that, you know, those are the choices.

A. No, I understand.

Kandamar's counsel did not ask for a return of the passport.

At the hearing on the motion to suppress on November 3, 2003, counsel stated that most of her arguments were in the brief, but complained that she had just received the government's opposition. The IJ inquired:

Q. Well, you're saying that you're not ready to proceed on this opposition or do you have any additional arguments?

A. Most of the arguments that I was going to bring up today were based on the brief, the motion that we already filed.

Q. All right, okay. And so, those are certainly part of the record now unless there's anything in addition to your motion. Is there anything in addition—

A. No, Your Honor.

Q. —to the motion? All right.

Denying the motion, the IJ held that the court "is not able to rule on the constitutionality of the regulations," denied Kandamar's application for voluntary departure because he was not statutorily eligible for the relief due to the lack of any travel documents permitting entry to Morocco, and ordered that Kandamar be removed and deported to Morocco.

Kandamar appealed to the BIA, alleging that the IJ erred in denying the application for voluntary departure, that the motion to suppress should have been granted because NSEERS is unconstitutional, and that the IJ should have conducted a factual inquiry into what transpired at the NSEERS interview and the circumstances of the seizure of Petitioner's documents. He specifically challenged the special registration interview because he was not notified of his right to representation.

On September 7, 2005, the BIA declined to address the challenge to NSEERS because "the Board is not empowered to rule on the constitutionality of the statutes and regulations that we administer." With respect to the appeal of the denial of the motion to suppress, it agreed with the IJ that Petitioner had not shown that the government's conduct was egregious, warranting the application of the exclusionary rule to immigration proceedings under INS v. Lopez-Mendoza, 468 U.S. 1032, 1051 n. 5, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984), and dismissed the appeal.

Kandamar challenges the denial of both the motion to suppress and the application for voluntary departure.

II. DISCUSSION

A. Voluntary Departure

Kandamar petitions for review of the IJ's denial of his application for voluntary departure. Kandamar criticizes the BIA because, in reviewing the IJ's denial of the request for voluntary departure, it did not consider the fact that Petitioner lacked a valid passport because DHS had seized it. Kandamar also criticizes the IJ for adjudicating his eligibility for post-hearing voluntary departure after a "very brief hearing" with inadequate reasoning. Specifically, he contends that the IJ initially indicated that she would permit voluntary departure and did not explain what changed her mind. These issues were properly raised first with the BIA.

Pursuant to 8 U.S.C. § 1229c(b), the "Attorney General may permit an alien voluntarily to depart the United States at the alien's own expense if, at the conclusion of a [removal] proceeding . . . the immigration judge enters an order granting voluntary departure in lieu of removal and" makes certain findings, including that the alien has established by clear and convincing evidence that "the alien has the means to depart the United States and intends to do so." Section 1229c specifically states that "[n]o court shall have jurisdiction over an appeal from denial of a request for an order of voluntary departure." Id. § 1229c(f); see also 8 C.F.R. § 240.25. Moreover, § 1252(a)(2)(B) provides that no court shall have jurisdiction to review any judgment regarding the granting of relief under 8 U.S.C. § 1229c. Thus, this court lacks authority to review a refusal to allow voluntary departure. Karim v. Gonzales, 424 F.3d 109, 111-12 (1st Cir.2005).

Petitioner seeks to circumvent this jurisdictional bar by claiming that the IJ gave him an inadequate hearing on his claim that his passport was unfairly taken from him at the NSEERS interview and that her reasoning was insufficient. "A due process claim requires that a cognizable liberty or property interest be at stake." DaCosta v. Gonzales, 449 F.3d 45, 50 (1st Cir.2006) (citation omitted). Discretionary forms of relief do "not rise to the level of such a protected interest." Id. (adjustment of status) (citation omitted). Thus, to the extent Petitioner seeks to paint his claim in due process colors, that claim will not succeed because voluntary departure is a "privilege, not a right." Jupiter v. Ashcroft, 396 F.3d 487, 492 (1st Cir.) (citation omitted), cert. denied, ___ U.S. ___, 126 S.Ct. 427, 163 L.Ed.2d 325 (2005). In any event, the IJ succinctly explained that the lack of a passport or any other travel document precluded voluntary departure. No greater hearing or rationale was necessary on the point.

Kandamar's primary protest is that the DHS improperly seized his passport at the special registration. The issue is poorly vetted in the record as the government does not cite any legal authority to support the seizure of the passport. While the special registration regulations authorize the government to require the immigrant to provide "information or documentation confirming compliance with his or her visa and admission," 8 C.F.R. § 264.1(f)(4)(ii), which presumably includes the passport, they do not authorize seizure of the passport.² Even assuming the expired passport were improperly seized, as opposed to inspected, at the NSEERS interview, there is no evidence in the record from January 15, 2003, when the...