Volodymyr Pavlyk v. Michael Mukasey , 275 F. App'x 542 ( 2008 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United
To be citedStates Court
only in accordance of R.Appeals
with Fed. App. P.
32.1Not to be cited per Circuit Rule 53
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 21, 2008∗
Decided April 29, 2008
Before
FRANK H. EASTERBROOK , Chief Judge
RICHARD D. C UDAHY, Circuit Judge
DANIEL A. MANION, Circuit Judge
Nos. 07-2950 & 07-3583
VOLODYMYR PAVLYK , also known as NIKOLAI
NARYJKIN, NATALIA PAVLYK and IRYNA PAVLYK , also Petitions for Review of an
known as LUBA SAVCHUK , Order of the Board of
Petitioners, Immigration Appeals.
v. Nos. A95-924-674
A95-415-976
MICHAEL B. MUKASEY, Attorney General of the A95-924-704
United States,
Respondent.
Order
We denied Volodymyr Pavlyk’s petition for review of an order that he (and his
family) must be removed from the United States to Ukraine. 469 F.3d 1082 (7th Cir.
∗ These successive appeals have been submitted to the original panel under Operating Procedure 6(b).
After examining the briefs and the record, we have concluded that oral argument is unnecessary. See Fed.
R. App. P. 34(a); Cir. R. 34(f).
Nos. 07-2950 & 07-3583 Page 2
2006). The Pavlyks then asked the Board of Immigration Appeals to reopen and, when
the Board denied that request, asked it to reconsider. That motion, too, was denied, and
the Pavlyks have filed two petitions for review, one from each of the orders.
The principal argument now advanced is that 8 U.S.C. §1158(a)(2)(B), which gives
aliens only one year after entering the United States to seek asylum, is either
inapplicable to the Pavlyks or unconstitutional. Such an argument does not support
reopening, however; only developments that post-date a removal order may be urged
in support of reopening. The immigration judge invoked §1158(a)(2)(B) against the
Pavlyks in their removal hearing. The Pavlyks conceded untimeliness but argued that
the immigration judge had not adequately considered the possibility of exceptions to
the statute; we dismissed that aspect of the claim for lack of jurisdiction, see also Jiménez
Viracacha v. Mukasey, 518 F.3d 511 (7th Cir. 2008), leaving only the Pavlyks’ request for
withholding of removal. The particular arguments that the Pavlyks now present were
not before us in 2006, but a motion to reopen is not a means to advance purely legal
arguments that were not made earlier. This is so whether or not the Pavlyks’ failure to
contest §1158(a)(2)(B) on their initial petition to this court meets the technical
requirements of issue preclusion.
Much the same problem dogs the Pavlyks’ argument that reopening is
warranted by the risk of persecution should they be returned to Ukraine. They lack any
evidence that conditions in Ukraine are materially different today than they were at the
time of their hearing. Instead they seek to adduce new evidence that could have been
presented earlier. For example, they contend that a letter the IJ and BIA considered in
2004 was a hoax. Whether the Ferents letter, dated May 18, 1998, was bona fide (and
truthful, if genuine) was a subject that could have been addressed long ago. A motion
to reopen is not a means to get a second bite at the apple and relitigate the removal
proceeding with the benefit of hindsight. See 8 C.F.R. §§1003.2(c)(3)(ii), 1003.23(b)(4)(i).
See also Krougliak v. INS, 289 F.3d 457, 460 (7th Cir. 2002). All of the evidence on which
the Pavlyks now rely concern events that predate the hearing. The Board was entitled
to confine its attention to the question whether conditions have changed for the worse
in Ukraine since 2004.
The petitions for review are denied.