Implicit Waiver of Counsel and the IJ’s Record-Development Duty: Eleventh Circuit Clarifies Due Process Baselines in Pro Se Removal Proceedings

Introduction

In Keriekan Palmer v. U.S. Attorney General, No. 22-11252 (11th Cir. Aug. 26, 2025) (non-precedential), the Eleventh Circuit denied a Jamaican national’s petition for review of a Board of Immigration Appeals (BIA) decision upholding the denial of several forms of relief: a waiver of the joint-filing requirement to remove conditions on permanent residence (good-faith marriage waiver), asylum, withholding of removal, and Convention Against Torture (CAT) relief. The panel’s opinion—though “Not for Publication”—provides consequential guidance on three recurring due process issues in immigration proceedings:

When and how a noncitizen can be deemed to have waived the statutory right to retain counsel.
What constitutes a sufficient opportunity to obtain and present evidence, particularly where the merits fail as a matter of law.
The scope of an Immigration Judge’s (IJ’s) duty to develop the record in pro se proceedings.

The case arises from Palmer’s pro se merits hearing, where the IJ found his testimony credible but denied relief, concluding that the alleged harm from the Jamaican “Stone Crusher” gang lacked nexus to a protected ground for asylum/withholding and that the record did not establish CAT eligibility or a good-faith marriage. On appeal, Palmer pressed due process arguments. The Eleventh Circuit affirmed the BIA’s dismissal, holding there was no due process violation and that Palmer had forfeited several additional issues by perfunctory briefing.

Summary of the Judgment

The Eleventh Circuit reviewed the BIA’s decision, and to the extent the BIA explicitly agreed with the IJ, also reviewed the IJ’s determinations. Applying de novo review to legal questions and substantial evidence review to factual findings, the court held:

Right to Counsel: Palmer was advised of his statutory right to counsel, was granted multiple continuances to secure representation, and ultimately implicitly waived that right by proceeding without counsel at subsequent hearings without requesting further time or indicating he had retained counsel.
Opportunity to Present Evidence: No due process violation occurred because the IJ allowed Palmer to testify and submit evidence, credited his testimony, and denied asylum/withholding as a matter of law for lack of protected-ground nexus. The claim failed on legal grounds, not for lack of time or documents.
IJ’s Duty to Develop the Record: Assuming such a duty applies, the IJ satisfied it by asking detailed, targeted questions concerning Palmer’s fear of return, the reasons for gang targeting, and the bona fides of his marriage.
Forfeiture of Other Issues: Additional arguments (e.g., CAT merits; removability while a good-faith I-751 waiver was pending; bias) were listed but not meaningfully argued and therefore were forfeited.

The petition for review was denied.

Analysis

Precedents Cited and How They Informed the Decision

Scope and Standard of Review:
- Jiang v. U.S. Att’y Gen., 568 F.3d 1252 (11th Cir. 2009): The court typically reviews the BIA’s decision and, where the BIA explicitly agrees with the IJ on certain points, reviews both. This framed the dual focus on the BIA’s rationale and the IJ’s aligned findings.
- Jeune v. U.S. Att’y Gen., 810 F.3d 792 (11th Cir. 2016): Reinforces the Jiang approach for dual-review when the BIA adopts or agrees with IJ reasoning.
- Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341 (11th Cir. 2009); Silva v. U.S. Att’y Gen., 448 F.3d 1229 (11th Cir. 2006): De novo review for legal issues and substantial evidence for facts, underscoring the deferential evidentiary posture but independent legal analysis.
Due Process Baselines:
- Frech v. U.S. Att’y Gen., 491 F.3d 1277 (11th Cir. 2007): Noncitizens are entitled to Fifth Amendment due process in removal proceedings.
- Sama v. U.S. Att’y Gen., 887 F.3d 1225 (11th Cir. 2018); Lapaix v. U.S. Att’y Gen., 605 F.3d 1138 (11th Cir. 2010): Due process entails notice and a meaningful opportunity to be heard. Lapaix also supports denying relief as a matter of law where the legal prerequisites cannot be met even crediting testimony.
Right to Counsel and Waiver:
- Flores-Panameno v. U.S. Att’y Gen., 913 F.3d 1036 (11th Cir. 2019); 8 U.S.C. § 1362: A statutory right to retain counsel at no expense to the government exists in removal proceedings.
- Montilla v. INS, 926 F.2d 162 (as cited by the panel): A waiver of counsel is valid if voluntarily made.
- Cobourne v. INS, 779 F.2d 1564 (11th Cir. 1986): Waiver of counsel may be implied from a respondent’s actions and statements; proceeding after acknowledging the right supports implied waiver.
Forfeiture by Inadequate Briefing:
- Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678 (11th Cir. 2014): Issues perfunctorily mentioned without developed argument and authority are forfeited—a critical appellate practice point that proved dispositive for several of Palmer’s claims.

Legal Reasoning

The court’s reasoning tracks the three due process arguments Palmer advanced:

1) Waiver of the Right to Counsel

The panel found no deprivation of Palmer’s right to counsel. He was advised of the right at the outset and received three continuances (from August 14 to August 28; from August 28 to September 11; and again to October 8, 2020) to obtain representation. Although he initially reported efforts to hire an attorney, he appeared pro se at the September 11 and October 8 hearings, did not renew requests for time, and did not indicate he had retained counsel. When informed the IJ would question him because he was unrepresented, he proceeded.

Applying Cobourne’s principle that waiver can be implicit, the court held that Palmer voluntarily waived his right to counsel by electing to go forward. The IJ was not required to endlessly continue proceedings, particularly after ample advisements and opportunities.

2) Opportunity to Obtain and Present Evidence

Palmer argued he lacked sufficient time to gather evidence (particularly during the pandemic). The panel rejected this claim on two levels:

Process adequacy: The IJ explained what evidence would be useful, credited Palmer’s testimony, and accepted his narrative as true for merits analysis.
Substantive disposition as a matter of law: The asylum claim failed for lack of nexus to a statutorily protected ground—gang extortion and violence motivated by financial gain or perceived wealth does not, without more, fit a protected ground. Because the legal element could not be met even if the testimony were fully credited, any shortfall in documentary evidence or additional time could not have changed the outcome. Under Lapaix, there is no due process violation where a claim fails as a matter of law.

This reasoning also undercuts prejudice—a necessary component of due process claims—because additional time to collect documents would not cure the legal deficiency (lack of nexus).

3) IJ’s Duty to Develop the Record

Without resolving whether due process affirmatively imposes a duty on IJs to develop the record in pro se cases, the court assumed such a duty and held it was satisfied. The IJ asked focused questions about:

The specific harm Palmer feared upon return and why the gang targeted him (his perceived access to money as a U.S. resident).
Key indicators of a bona fide marriage (cohabitation, financial commingling, joint documentation) pertinent to the I-751 good-faith waiver.

The IJ also invited Palmer to add anything else in support of remaining in the United States, and nothing elicited altered the legal insufficiency of nexus or filled the evidentiary void on the marriage waiver.

4) Forfeiture of Additional Claims

The panel enforced rigorous briefing standards under Sapuppo. Although Palmer listed issues regarding CAT merits (government involvement/acquiescence), removability while a good-faith I-751 was pending, and alleged IJ bias, he did not develop these with argument and authority. They were deemed forfeited.

Impact and Forward-Looking Implications

Right-to-Counsel Waiver in Practice: The decision underscores that, in the Eleventh Circuit, repeated continuances and explicit advisement of the right to counsel can suffice to establish a voluntary, implied waiver when a respondent proceeds pro se without seeking further delay or signaling ongoing efforts to retain counsel. Respondents should make clear, on the record, any need for additional time and concretely document efforts to obtain counsel to avoid implied waiver.
Pro Se Proceedings and IJ’s Record-Development Role: The court assumes arguendo a duty to develop the record and finds it satisfied by structured, targeted questioning. IJs may rely on focused inquiries and an open-ended invitation for additional information to meet any such obligation. Respondents must proactively identify missing evidence and articulate specific evidentiary needs to justify continuances.
Asylum Nexus and Gang Violence: The opinion reiterates a familiar line in Eleventh Circuit asylum jurisprudence: generalized criminality and gang extortion for money—without a protected-ground link (race, religion, nationality, political opinion, or particular social group)—will not establish eligibility. Credible testimony alone cannot overcome the legal requirement of nexus. This continues to pose a steep hurdle for gang-related claims framed primarily as economic extortion or opportunistic violence.
CAT Claims and Government Acquiescence: While not reached on the merits here (forfeited), the IJ’s and BIA’s emphasis on the absence of state involvement highlights that CAT relief requires proof of torture by, or with the consent or acquiescence of, government officials. Evidence of private criminal harm, standing alone, will typically be insufficient.
Appellate Practice: The case is a cautionary tale: listing an issue is not enough. Practitioners must fully brief arguments with record citations and legal authority or risk forfeiture, even where stakes are high.
COVID-Era Timeline Arguments: The court rejected the notion that pandemic-era scheduling necessarily rendered the proceedings “rushed,” especially where multiple continuances were afforded and the claims were resolved as a matter of law. Pandemic-related constraints should be specifically tied to missing, case-dispositive evidence and backed by concrete proffers.

Complex Concepts Simplified

Conditional Permanent Residence (CPR): Noncitizens who obtain residency based on a recent marriage to a U.S. citizen receive conditional status for two years and must later file to remove conditions, typically with their spouse (joint filing).
I-751 Good-Faith Marriage Waiver: If the marriage ends or joint filing is impossible, a noncitizen can seek a waiver by proving the marriage was entered into in good faith (not for immigration purposes). Evidence commonly includes joint leases, bank accounts, taxes, insurance, affidavits, and photos. Mere testimony without corroboration often proves insufficient.
Right to Counsel in Removal Proceedings: Individuals have a statutory right to retain private counsel (at their own expense). The government does not provide appointed counsel. An IJ must advise of this right and often will grant reasonable continuances to secure an attorney. If a respondent proceeds without counsel after being advised and offered time, the waiver can be implied.
Due Process in Immigration Court: The Fifth Amendment ensures notice and a meaningful opportunity to be heard. To prevail on a due process claim, a respondent typically must show both a procedural violation and prejudice (a realistic possibility the outcome would have been different).
Asylum and Nexus: To win asylum, harm must be “on account of” a protected ground (race, religion, nationality, political opinion, or membership in a particular social group). Gang extortion for money generally reflects criminal motives, not protected-ground persecution, unless tied to a cognizable group or political opinion.
CAT Relief: Requires proof that the respondent is more likely than not to be tortured if removed, and that the torture would be inflicted by or with the consent/acquiescence of public officials. Private violence without state involvement typically does not qualify.
Standards of Review: Legal questions are reviewed de novo (fresh look); factual findings are reviewed for substantial evidence (deferential; the court asks whether the record reasonably supports the agency’s finding).
Forfeiture on Appeal: An appellate court may deem issues forfeited if the appellant only lists them without providing argument, analysis, and authority.

Conclusion

Palmer reinforces three important due process baselines in Eleventh Circuit immigration law:

Implied Waiver of Counsel: A respondent who is advised of the right to counsel, granted reasonable continuances, and chooses to proceed pro se without further request for time is deemed to have voluntarily waived that right.
No Violation Where the Claim Fails as a Matter of Law: When an IJ credits testimony yet denies asylum for lack of nexus to a protected ground, additional time or documents will not cure the legal deficiency. Due process is not violated in those circumstances.
Reasonable Record Development Suffices: An IJ satisfies any record-development duty through targeted questioning and an open invitation for further information, especially in pro se proceedings.

Practically, the decision underscores the need for respondents to preserve their rights on the record—explicitly requesting continuances, documenting efforts to obtain counsel, and proffering specific, material evidence needs. Substantively, it aligns with Eleventh Circuit jurisprudence that general gang violence and financial extortion, without a protected-ground nexus, do not satisfy asylum’s statutory requirements, and that CAT relief hinges on government involvement. Finally, it is a strong reminder that appellate success depends on fully developed arguments; perfunctory issue-spotting will not suffice.

Although designated “Not for Publication,” the opinion offers clear, operational guidance to IJs, practitioners, and respondents alike about the practical contours of due process in pro se removal proceedings and the doctrinal limits of gang-based protection claims.