Povsic v. Attorney General of the United States , 383 F. App'x 199 ( 2010 )

IMG-221 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-3976
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ALICIA LILIAN POVSIC; JONATHAN POVSIC,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency Nos. A95 340 723 and A98 098 058)
Immigration Judge: Honorable Margaret Reichenberg
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 26, 2010
Before: FUENTES, ROTH AND VAN ANTWERPEN, Circuit Judges
(Opinion filed: June 4, 2010)
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OPINION
___________
PER CURIAM
Alicia Povsic and her son, Jonathan Povsic, petition for review of a Board of
Immigration Appeals (“BIA”) decision dismissing their appeal of an Immigration Judge’s
(“IJ”) decision denying their motion to terminate the removal proceedings and finding
them removable from the United States. We will deny the petition for review.
In 2006, the Department of Homeland Security (“DHS”) issued notices to appear
charging that Alicia and Jonathan Povsic, natives and citizens of Uruguay, were subject to
removal from the United States because they were present without having being admitted
or paroled. Through counsel, the Povsics denied the factual allegations and charges in the
notices to appear. To establish the factual allegations and charges of removability, DHS
submitted the Povsics’ applications for family unity benefits under the amendments to the
Legal Immigration Family Equity (“LIFE”) Act and decisions denying those applications.
The Povsics moved to terminate the removal proceedings, arguing that the
information contained in their applications was protected by the confidentiality provisions
of the LIFE Act. The IJ disagreed, explaining that the confidentiality provisions apply to
information contained in applications for adjustment to lawful permanent resident status,
not to information contained in applications for family unity benefits. Based on the
information contained in the Povsics’ applications, the IJ concluded that DHS had
established their alienage and found that the Povsics had submitted no evidence showing
that they were lawfully admitted to the United States, that they are entitled to be admitted,
or that they are not inadmissible. The IJ thus denied the motion to terminate the removal
proceedings, found the Povsics removable as charged, and granted their applications for
voluntary departure.
The BIA dismissed the Povsics’ appeal, finding that the IJ properly admitted their
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applications for family unity benefits and that, based on the statements contained in the
applications, they are subject to removal. This petition for review followed.
We have jurisdiction pursuant to 8 U.S.C. § 1252(a). We review the agency’s
legal conclusions de novo, subject to established principles of deference. Patel v. Att’y
General, 599 F.3d 295, 297 (3d Cir. 2010) (per curiam).
The LIFE Act affords aliens who filed claims for class membership in certain class
action lawsuits the opportunity to apply for adjustment to lawful permanent resident
status. See Patel, 599 F.3d at 296 (citing Pub. L. No. 106-553, § 1104, 114 Stat. 2762,
2762A-146-49 (2000)). The LIFE Act Amendments allow spouses and children of aliens
who have filed LIFE Act applications to remain in the United States and obtain work
authorization. See id. (citing Pub. L. No. 106-554, § 1504, 114 Stat. 2763, 2763A-325
(2000)).
We recently held that, under the plain language of the LIFE Act, the confidentiality
provisions applicable to applications of aliens seeking adjustment of status do not apply
to the applications of aliens seeking family unity benefits under the LIFE Act
Amendments. Patel, 599 F.3d at 298. As in Patel, the Povsics applied for family unity
benefits under the LIFE Act Amendments, not adjustment of status, and their applications
were denied. Thus, the confidentiality provisions of the LIFE Act do not apply and the
BIA did not err in finding that the IJ properly admitted, and considered the information in,
the Povsics’ applications.
Accordingly, because Patel controls this case, we will deny the petition for review.
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