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Camick v. Sessions

United States Court of Appeals, Eighth Circuit

June 8, 2018

Leslie Lyle Camick Petitioner
Jefferson B. Sessions, III, Attorney General of the United States Respondent National Immigration Project of the National Lawyers Guild Amicus on Behalf of Petitioner

          Submitted: February 15, 2018

          Petition for Review of Orders of the Board of Immigration Appeals

          Before LOKEN, BENTON, and ERICKSON, Circuit Judges.


         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 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- 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.

         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]

         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. ...

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