Dorothy Taylor v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: December 13, 2019
• Docket: 18-14782
• Status: Unpublished

Opinion

Case: 18-14782 Date Filed: 12/13/2019 Page: 1 of 3

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-14782 Non-Argument Calendar ________________________

Agency No. A093-440-761

DOROTHY TAYLOR,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petitions for Review of a Decision of the Board of Immigration Appeals ________________________

(December 13, 2019)

Before WILLIAM PRYOR, BRANCH and FAY, Circuit Judges.

PER CURIAM: Case: 18-14782 Date Filed: 12/13/2019 Page: 2 of 3

Dorothy Taylor, a native and citizen of Ghana, petitions for review of an

order dismissing her appeal of a decision that granted her voluntary departure. 8

U.S.C. § 1229c(a). The Board of Immigration Appeals dismissed Taylor’s appeal

for lack of jurisdiction based on her appeal waiver. Taylor argues that the

immigration judge was biased and that she did not waive her right to appeal

knowingly and voluntarily. We dismiss in part and deny in part Taylor’s petition.

We lack jurisdiction to review the part of Taylor’s petition concerning

judicial bias. We “may review a final order of removal [based on a constitutional

claim] only if . . . the alien has exhausted all administrative remedies available to

[her] as a matter of right.” Id. § 1252(d)(1), (a)(2)(D). Taylor argues that the

immigration judge denied her due process by expressing “frustration with her case”

and endorsing an agreement for her to depart voluntarily and avoid deportation for

fraud, see id. § 1182(a)(6)(C)(i), but Taylor failed to make that argument in her

appeal to the Board. Because “we are divested of jurisdiction to consider a claim

that was not presented to the immigration courts, as an alien must exhaust the

administrative remedies available to [her] prior to obtaining judicial review,” Al

Najjar v. Ashcroft, 257 F.3d 1262, 1285 n.14 (11th Cir. 2001) (internal quotation

marks omitted), we dismiss this part of Taylor’s petition.

The Board lacked jurisdiction to entertain Taylor’s appeal. Taylor’s request

to depart voluntarily before the completion of her removal proceedings embodied

2 Case: 18-14782 Date Filed: 12/13/2019 Page: 3 of 3

an appeal waiver, 8 C.F.R. § 1240.26(b)(1)(i), so when the immigration judge

granted her voluntary departure, that decision became final and stripped the Board

of jurisdiction over Taylor’s case. See Matter of Shih, 20 I. & N. Dec. 697, 698–99

(B.I.A. 1993). Taylor argues that her appeal waiver was “not considered or

intelligent,” United States v. Mendoza-Lopez, 481 U.S. 828, 840 (1987), because

her attorney misinformed her that voluntary departure would allow her to avoid

deportation and remain in the United States with her children. But any deficiencies

in the attorney’s performance did not prejudice Taylor. See Mejia Rodriguez v.

Reno, 178 F.3d 1139, 1146 (11th Cir. 1999). The immigration judge apprised

Taylor of the consequences of voluntary departure, and she twice confirmed that

she had to depart the country by March 29, 2018, that her “decision . . . [was]

final” and “waive[d] appeal,” and that her “conditional permanent resident status

would be terminated effective that same day, March the 29th.” The immigration

judge inquired repeatedly whether Taylor had any questions, yet she asked only if

her children “can stay” in the United States. After the immigration judge responded

that Taylor’s agreement “doesn’t affect anyone other than [her],” she stated that

she had no other questions. Because Taylor knowingly and intelligently waived her

right to appeal, the acceptance of her request for voluntary departure stripped the

Board of jurisdiction over her appeal. We deny this part of Taylor’s petition.

PETITION DISMISSED IN PART AND DENIED IN PART.