United States Court of Appeals For the Eighth Circuit ___________________________ No. 21-2135 ___________________________ Flora Amwayi Holmes Petitioner v. Merrick B. Garland, United States Attorney General Respondent ____________ Petition for Review of an Order of the Board of Immigration Appeals ____________ Submitted: February 17, 2022 Filed: June 17, 2022 ____________ Before LOKEN, COLLOTON, and SHEPHERD, Circuit Judges. ____________ SHEPHERD, Circuit Judge. Flora Amwayi Holmes, a native and citizen of Kenya, petitions for review of the order of the Board of Immigration Appeals (BIA) denying her motion to remand and dismissing her appeal from an order of removal. Having jurisdiction pursuant to 8 U.S.C. § 1252(b)(2), we deny the petition. I. On December 29, 2009, Holmes entered the United States on an F-1 nonimmigrant student visa. After she failed to comply with the conditions of her nonimmigrant status and falsely claimed to be a United States citizen to gain employment, the Department of Homeland Security (DHS) served Holmes with a notice to appear (NTA). In this NTA, DHS charged her with being removeable pursuant to 8 U.S.C. § 1227(a)(1)(C)(i), which provides for the removal of an alien admitted as a nonimmigrant who has failed to maintain that nonimmigrant status or to comply with the conditions of that status, and § 1227(a)(3)(D)(i), which provides for the removal of an alien who has falsely represented herself to be a United States citizen for any benefits such as employment. On February 28, 2012, Holmes appeared pro se before an immigration judge (IJ), Judge William Nickerson. Judge Nickerson read the NTA’s charges to Holmes and asked if she understood them, and she agreed that she did. Judge Nickerson advised Holmes of her right to be represented by counsel, provided a list of available pro bono attorneys to Holmes, and directed Holmes’s attention to that list. Judge Nickerson then asked Holmes if she wanted a continuance to allow her time to obtain a lawyer. Holmes declined, stating that she wanted to represent herself. To confirm, Judge Nickerson said, “Then you’re going to waive your right to counsel and represent yourself?” Holmes responded, “Yes, Your Honor.” Later in the proceeding, Judge Nickerson explained that he allows a continuance for any reason as a matter of course and asked Holmes a second time if she would like a continuance, to which Holmes responded that she wanted her case heard that same day. Then, Judge Nickerson asked Holmes if the NTA’s charges were true or false. Holmes admitted to the charges and conceded removability. Holmes also told Judge Nickerson that she had been raped while living in Kenya and because of this rape, she feared persecution should she return to Kenya. In turn, Judge Nickerson provided Holmes with an application for asylum. After conducting an off-the-record bond hearing and because he needed documentation about -2- Holmes’s then-current place of residence prior to making a bond determination, Judge Nickerson continued the matter until March 8, 2012. Holmes obtained counsel and again appeared before Judge Nickerson on March 8. At this time, …
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