Harchenko v. INS

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 Harchenko v. INS, et al. No. 02-3971
ELECTRONIC CITATION: 2004 FED App. 0254P (6th Cir.)
File Name: 04a0254p.06 _________________
COUNSEL
UNITED STATES COURT OF APPEALS
ON BRIEF: Richard T. Herman, RICHARD T. HERMAN
FOR THE SIXTH CIRCUIT & ASSOCIATES, Cleveland, Ohio, for Petitioners. Audrey
_________________ B. Hemesath, UNITED STATES DEPARTMENT OF
JUSTICE, OFFICE OF IMMIGRATION LITIGATION,
YURI HARCHENKO , X Washington, D.C., for Respondents.
OLEKSANDR HARCHENKO , -
- _________________
and TETIANA HARCHENKO ,
- No. 02-3971
Petitioners, - OPINION
> _________________
,
v. - JULIA SMITH GIBBONS, Circuit Judge. Petitioner Yuri
- Harchenko appeals from the decision of the Board of
IMMIGRATION AND - Immigration Appeals (“BIA”) denying his emergency motion
NATURALIZATION SERVICE; - to reopen, or in the alternative, to reinstate voluntary
JOHN ASHCROFT , Attorney - departure. Harchenko’s initial petition for asylum was denied
- after a hearing on the merits on August 19, 1997. The
General,
- Immigration Judge (“IJ”) granted voluntary departure and
Respondents. N Harchenko appealed the denial of his application for asylum
On Appeal from the Board of Immigration Appeals. to the BIA. The BIA dismissed his appeal and this court
Nos. A73 123 548; A73 419 538; A73 418 915. affirmed, finding that the BIA’s denial of asylum and
withholding of deportation was supported by substantial
Submitted: June 9, 2004 evidence in the administrative record. Prior to the issuance of
this court’s opinion in Harchenko’s first appeal, he filed a
Decided and Filed: July 30, 2004 motion to reopen based on an approved labor certification and
“deteriorating human rights conditions in the Ukraine,” and,
Before: SILER and GIBBONS, Circuit Judges; REEVES, in the alternative, requested reinstatement of the voluntary
District Judge.* departure period. The BIA found that the motion to reopen
was untimely and declined to exercise its sua sponte authority
to reopen the proceedings pursuant to 8 C.F.R. § 3.2(a). The
BIA also concluded that it lacked the authority to reinstate the
period of voluntary departure because it was denying the
motion to reopen. For the following reasons, the petition for
*
review of the decision of the BIA is denied.
The Hono rable Danny C. Reeves, United States District Judge for
the Eastern District of Kentucky, sitting by designation.
1
No. 02-3971 Harchenko v. INS, et al. 3 4 Harchenko v. INS, et al. No. 02-3971
I. his untimely brief and affirmed the IJ’s decision. Id. at *1.
The BIA also reiterated the IJ’s earlier grant of voluntary
Harchenko and his family are natives and citizens of the departure: “[T]he respondents are permitted to depart from the
Ukraine. They arrived in the United States in October 1994, United States voluntarily within 30 days from the date of this
with a B-2 visitor visa that allowed them to stay until April order or any extension beyond that time as may be granted by
20, 1995. On December 9, 1994, Harchenko filed a petition the district director; and in the event of failure to so depart,
for asylum that included derivative petitions for his wife, Dr. the respondents shall be deported as provided in the [original]
Tetiana Harchenko, and son, Oleksandr. On March 12, 1996, order.” This court affirmed the BIA’s decision on November
the Immigration and Naturalization Service (“INS”) issued an 9, 2001. Id.
Order to Show Cause, charging Harchenko with deportability
for remaining in the United States for a time longer than Between the IJ’s initial ruling and the BIA’s decision to
permitted. affirm, Harchenko filed a Form I-140 application for labor
certification as a Licensed Physical Nurse at Broadview
Harchenko’s petition for asylum was denied initially on Multi-Care facility in Parma, Ohio. This application was
August 19, 1997. The IJ noted that she had “some problems approved by the INS on October 18, 2000. In light of the
with [Harchenko’s] credibility” because his administratively- approved labor certification, the Harchenkos argued to the
filed application alleged a fear of persecution on the basis of INS that they were eligible for an adjustment in status to
his Jewish ethnicity, while his supplemental application permanent residents upon the reopening of their deportation
emphasized the likelihood that he would be threatened by proceedings. However, the INS advised them that they were
criminals if he returned to the Ukraine. The IJ nonetheless barred from seeking an adjustment of status for five years
assumed Harchenko’s claims were credible and concluded pursuant to § 242B(e) of the Immigration and Naturalization
that he had failed to establish a likelihood of present or future Act (“INA”), 8 U.S.C. § 1252b (1996), due to their failure to
persecution in the Ukraine based upon his identity as a leave the United States following the issuance of the BIA’s
member of the Jewish faith, or as a Jewish national. An order May 2000 decision granting voluntary departure.
was entered denying Harchenko’s applications for asylum and
the withholding of deportation and granting voluntary On October 30, 2001, the Harchenkos filed an emergency
departure. The order noted that “if the [r]espondents fail to motion to reopen and, in the alternative, to request
depart when and as required, the privilege of voluntary reinstatement of voluntary departure. The BIA concluded that
departure shall be withdrawn without further notice or the motion to reopen was untimely and rejected Harchenko’s
proceedings and the following order shall become argument that a final order of deportation did not exist until
immediately effective: [r]espondents shall be deported from the period of voluntary departure had expired. Harchenko had
the United States to the Ukraine on the charges contained in argued that the period of voluntary departure was tolled while
the Orders to Show Cause.” he pursued an appeal of the BIA’s decision affirming the
denial of his application for asylum, but the BIA noted that
Although Harchenko filed a timely notice of appeal with the regulatory deadline for the filing of a motion to reopen
the BIA, his brief was not submitted on time and the BIA runs from the date the IJ enters an order of deportation, and
declined to grant an extension. Harchenko v. INS, No. 00- not from the date the voluntary departure period expires. In
3789, 2001 WL 1429245, at *2 (6th Cir. Nov. 9, 2001) the alternative, Harchenko had argued that the BIA should
(Harchenko I). The BIA later denied his motion to consider exercise its sua sponte authority to reopen the proceedings
No. 02-3971 Harchenko v. INS, et al. 5 6 Harchenko v. INS, et al. No. 02-3971
due to exceptional circumstances, but the BIA concluded that III.
Harchenko’s desire to seek an adjustment of status was not an
exceptional situation warranting reopening. Harchenko also Although Harchenko asserts eight issues in his brief,1 he is
requested reopening on the basis of changed circumstances in essence arguing just two points: (1) the BIA abused its
arising in the Ukraine, but the BIA found that he had not discretion in denying his motion to reopen, and (2) if this
demonstrated such a “reasonable likelihood of success on the court affirms the denial of his motion to reopen, it should
merits so as to make it worthwhile to develop the issues nevertheless reinstate his earlier grant of voluntary departure.
further at a full evidentiary hearing.” Finally, the BIA denied
Harchenko’s request that it reinstate the period of voluntary A. Motion to Reopen
departure, finding that it lacked the authority to do so because
it was denying his motion to reopen. He now appeals from Harchenko first challenges the BIA’s denial of his motion
the order denying his motion to reopen and request for to reopen. He argues that the BIA erred in concluding that his
voluntary departure. motion to reopen was untimely, in deciding that he had failed
to demonstrate changed country conditions in the Ukraine, in
II. declining to exercise its sua sponte authority to reopen
proceedings, and in finding that it lacked the authority to
This court’s jurisdiction to review the BIA’s denial of a reinstate voluntary departure. This court reviews the BIA’s
motion to reopen deportation proceedings was altered by denial of a motion to reopen for an abuse of discretion. INS
adoption of the Illegal Immigration Reform and Immigrant v. Doherty, 502 U.S. 314, 323-24 (1992). Legal issues are
Responsibility Act of 1996 (“IIRIRA”), Pub. L. No. 104-208, reviewed de novo. See Mikhailevitch v. INS, 146 F.3d 384,
110 Stat. 3009. Prior to 1996, parties who wished to appeal 391 (6th Cir. 1998).
any decision of the BIA filed a petition for review in the court
of appeals for the circuit in which the administrative Under the rules in effect at the time the Harchenkos filed
proceedings had been held. INA § 106(a) (formerly codified their asylum petition, a motion to reopen in any case
at 8 U.S.C. § 1105(a)). Section 106 was repealed by the previously the subject of a final decision by the BIA had to be
IIRIRA and replaced with a new judicial review provision filed no later than 90 days after the date of the BIA’s decision.
codified at 8 U.S.C. § 1252, but the repeal applies only to
immigration proceedings begun after April 1, 1997. IIRIRA
§§ 306(c), 309(a) & (c). The IIRIRA specifically provides for 1
The government argue s that this court should dismiss petitioners’
the application of transitional rules in cases in which brief for failure to cite the administrative record in acco rdance with
deportation proceedings were pending before April 1, 1997, Federal Rule of Appellate Procedure 28(a)(9)(A). Although petitioners’
and a final deportation order was filed after October 30, 1996. brief is in fact bereft of citations to the administrative reco rd, the
IIRIRA § 309(c)(4). Because the BIA issued its decision on government cites no authority supporting its argument that this court
should dismiss petitioners’ appeal on that basis. Many of the argum ents
July 31, 2002, and petitioners were placed in proceedings asserted by p etitioners, with the exception of their argument for changed
before April 1, 1997, this case is governed by former § 106 of country conditions in the Ukraine, are legal, and not factual in nature.
the INA, as amended by the IIRIRA’s transitional rules. Hence, the lack of citation s to the administrative record is not nec essarily
fatal to their arguments on appeal. We ca ution parties, however, that the
court does not condone failures to comply with this rule. Such failures
unnecessarily com plicate review of the materials included in the Joint
Append ix.
No. 02-3971 Harchenko v. INS, et al. 7 8 Harchenko v. INS, et al. No. 02-3971
See 8 C.F.R. § 3.2(c)(2). However, the 90-day filing deadline circumstances arising in the country of nationality if the
does not apply to motions to reopen (1) filed by aliens who evidence of such conditions is material, was not available, and
are deported in absentia; (2) filed by aliens seeking asylum or could not have been discovered or presented at the previous
withholding of deportation based on changed country hearing. The BIA determined this exception was not
circumstances; (3) jointly filed by the alien and the INS; and applicable to Harchenko’s motion to reopen because
(4) filed by the INS where the basis of the motion is fraud in Harchenko had not established the existence of materially
the original proceeding or a crime that would support changed conditions in the Ukraine. The BIA did not abuse its
termination of asylum. 8 C.F.R. § 3.2(c)(3)(i-iv). Because discretion in doing so. The party filing a motion to reopen
they filed their motion to reopen well after the BIA’s May bears a heavy burden. See Doherty, 502 U.S. at 323. As the
2000 decision, the Harchenkos asked the INS to join in their Supreme Court has noted, “[g]ranting such motions too freely
motion, but the INS declined on the grounds that the will permit endless delay of deportation by aliens creative and
Harchenkos were statutorily ineligible to seek an adjustment fertile enough to continuously produce new and material facts
of status until after June 22, 2005, due to their failure to sufficient to establish a prima facie case.” INS v. Wang, 450
voluntarily depart within 30 days of the final order of U.S. 139, 143 n.5 (1981) (quotation omitted). As evidence of
deportation. Before the BIA on their motion to reopen, the changed human rights conditions in the Ukraine, Harchenko
Harchenkos argued that their voluntary departure period was offers a long list of newspaper articles and references to the
tolled until 30 days after this court issued its mandate in 2001 State Department Country Reports. He fails to explain
Harchenko I and that their motion to reopen was therefore how these developments would affect him if he is returned to
timely. The BIA dismissed their argument, noting that the the Ukraine.
regulatory deadline for the filing of a motion to reopen runs
from the date of the entry of the order of deportation, and not Alternatively, Harchenko requests that this court take
from the date that the period of voluntary departure expires. judicial notice of changed conditions in the Ukraine. As we
The BIA did not err in reaching this conclusion. See Matter have previously noted, an alien filing a motion to reopen
of Goolcharan, 23 I. & N. Dec. 5 (BIA 2001). This court has based on changed country conditions “cannot rely on
previously noted that the time for filing a motion to reopen speculative conclusions or mere assertions of fear of possible
can be equitably tolled, see Miculi v. Ashcroft, No. 03-3276, persecution, but instead must offer reasonably specific
2004 WL 886956, at *1 (6th Cir. Apr. 23, 2004) (citing information showing a real threat of individual persecution.”
Iavorski v. INS, 232 F.3d 124, 127 (2d Cir. 2000)), but the Dokic v. INS, No. 92-3592, 1993 WL 265166, *5 (6th Cir.
Harchenkos offer no explanation for their failure to file their July 15, 1993) (citing Blanco-Comarribas v. INS, 830 F.2d
motion to reopen within the 90-day deadline established by 1039, 1041-42 (9th Cir. 1987)). “The feared persecution must
8 C.F.R. § 3.2(c)(2). Indeed, the Harchenkos do not relate to the alien individually, not to the population
challenge the BIA’s determination that their motion to reopen generally.” Id. Even if this court were to take judicial notice
was untimely. of changed human rights conditions in the Ukraine, the
articles and reports offered by Harchenko fail to demonstrate
Instead, the Harchenkos argue that this court should reopen the “individualized” fear of persecution required for asylum.
their proceedings based on changed human rights conditions Therefore, the BIA did not abuse its discretion when it
in the Ukraine. Under 8 C.F.R. § 3.2(c)(3)(ii), there is no concluded that Harchenko had failed to show materially
time limitation for filing a motion to reopen to reapply for changed conditions in the Ukraine such that his failure to file
asylum or withholding of deportation based on changed a timely motion to reopen could be excused.
No. 02-3971 Harchenko v. INS, et al. 9 10 Harchenko v. INS, et al. No. 02-3971
Harchenko also contends that the BIA abused its discretion Finally, Harchenko argues that the BIA erred when it
by declining to exercise its sua sponte authority to reopen concluded that it lacked the authority to reinstate his period of
proceedings under 8 C.F.R. § 3.2(a). The BIA noted that its voluntary departure. This court reviews the BIA’s refusal to
discretionary power to reopen under § 3.2(a) is limited to reinstate voluntary departure under an abuse of discretion
“exceptional situations” and concluded that Harchenko’s standard. Yousif v. INS, 794 F.2d 236, 244 (6th Cir. 1986).
desire to seek an adjustment of status was not exceptional. Voluntary departure is a form of discretionary relief that
The government contends that this court lacks jurisdiction to allows an alien to leave without stigma or adverse
find that the BIA abused its discretion by failing to exercise consequences of deportation. See Contreras-Aragon v. INS,
its discretionary authority to reopen Harchenko’s proceedings. 852 F.2d 1088, 1090 (9th Cir. 1988) (en banc). Under
We agree. The decision whether to invoke sua sponte 8 U.S.C. §§ 1254(e)(1) and 1252(b), the Attorney General has
authority is committed to the unfettered discretion of the BIA. sole discretion to permit an alien under deportation
See 8 C.F.R. § 3.2(a). “Therefore, the very nature of the proceedings to depart voluntarily. By regulation, this
claim renders it not subject to judicial review.” Luis v. INS, authority is delegated to the INS district director, and, in
196 F.3d 36, 40 (1st Cir. 1999). See also Calle-Vujiles v. limited circumstances, to immigration judges and to the BIA:
Ashcroft, 320 F.3d 472, 474 (3d Cir. 2003); Ekimian v. INS,
303 F.3d 1153, 1154 (9th Cir. 2002); Anin v. Reno, 188 F.3d Authority to reinstate or extend the time within which to
1273, 1279 (11th Cir. 1999). depart voluntarily specified initially by an immigration
judge or the Board is within the sole jurisdiction of the
As other courts have noted, the discretion permitted by district director, except that an immigration judge or the
§ 3.2(a) is “so wide that even if the party moving has made Board may reinstate voluntary departure in a deportation
out a prima facie case for relief, the BIA can deny a motion to proceeding that has been reopened for a purpose other
reopen a deportation order. No language in the provision than solely making an application for voluntary
requires the BIA to reopen a deportation proceeding under departure.
any set of particular circumstances. Instead, the provision
merely provides the BIA the discretion to reopen immigration 8 C.F.R. § 1240.57 (emphasis added). As is clear from the
proceedings as it sees fit.” Anin, 188 F.3d at 1279 (citations above language, the BIA’s authority to reinstate voluntary
and quotation omitted). This reasoning is based on the departure is dependent on the reopening of a proceeding for
Supreme Court’s decision in Heckler v. Chaney, 470 U.S. a purpose other than solely making an application for
821, 830 (1985), in which the court held that “review is not to voluntary departure. In this case, the BIA denied
be had if the statute is drawn so that a court would have no Harchenko’s motion to reopen. Therefore, it lacked the
meaningful standard against which to judge the agency’s authority to reinstate voluntary departure and clearly did not
exercise of discretion.” Section 3.2(a) provides no standard abuse its discretion in denying this request.
by which to judge the agency’s exercise of discretion. It
allows the BIA to reopen proceedings in exceptional B. This Court’s Authority to Reinstate Voluntary
situations; it does not require the BIA to do so. As such, this Departure
court is without jurisdiction to review the BIA’s decision
declining to exercise its discretion to reopen or reconsider Harchenko alternatively asks this court to reinstate
Harchenko’s case. voluntary departure. He argues that we are empowered to do
so in his case because the INS and the BIA both declined to
No. 02-3971 Harchenko v. INS, et al. 11 12 Harchenko v. INS, et al. No. 02-3971
extend or reinstate voluntary departure in order to punish him its discretion to withhold voluntary departure to deter
for seeking access to this court. applicants from seeking judicial review of BIA decisions, or
(2) the [INS] does not suggest it will present the district
This circuit has never before addressed the circumstances director with any other reason for refusing the reinstatement.”
under which we may reinstate voluntary departure in cases Id. (quotations omitted) (emphasis and alteration in original).
that are pre-IIRIRA and governed by the transitional rules. By contrast, four circuits held, prior to the IIRIRA, that the
Before adoption of the IIRIRA, the courts of appeals were statutory and regulatory language vesting authority to
divided on the issue of whether and under what circumstances reinstate voluntary departure solely within the discretion of
they had the authority to reinstate voluntary departure.2 The the Attorney General deprived federal courts of jurisdiction to
Ninth Circuit held that once voluntary departure was granted reinstate the voluntary departure period. See Nkacoang v.
by the BIA, the privilege “remain[ed] in effect throughout the INS, 83 F.3d 353, 355 (11th Cir. 1996); Castaneda v. INS, 23
period of [judicial] review and for whatever additional period F.3d 1576, 1580 (10th Cir. 1994); Alsheweikh v. INS, 990
the [Board] afforded the alien in the order under review.” F.2d 1025, 1027 (8th Cir. 1993); Kaczmarczyk v. INS, 933
Contreras-Aragon, 852 F.2d at 1092.3 The First and Fourth F.2d 588, 598 (7th Cir. 1991). These circuits take the better
Circuits took a more moderate position, retaining some approach.
authority over reinstatement or extension of voluntary
departure while at the same time acknowledging that “the Two primary concerns motivated courts that concluded
decision to reinstate or extend voluntary departures should they had the authority to reinstate voluntary departure pre-
usually be left to the discretion of the District Director, who IIRIRA: (1) access to appellate review, and (2) judicial and
is better suited to consider the factual prerequisites . . . .” administrative economy. Castaneda, 23 F.3d at 1581. These
Ramsay v. INS, 14 F.3d 206, 213 (4th Cir. 1994); see also courts were concerned that, “because the usual thirty-day
Umanzor-Alvarado v. INS, 896 F.2d 14, 16 (1st Cir. 1990). departure period permitted by the Board obviously cannot
These courts were concerned that under the Ninth Circuit’s cover the time expended by a petition for review, voluntary
original approach, “a court might reinstate voluntary departure is, in effect, conditioned on a waiver of judicial
departure even though, in the interim period between the review with respect to the underlying deportation order.” Id.
BIA’s and court of appeals’ decisions, the alien may have In short, they saw the legislative and regulatory scheme as
committed acts which would preclude him from eligibility for presenting aliens with a difficult choice: either elect to depart
voluntary departure . . . .” Ramsay, 14 F.3d at 213. They voluntarily and abandon any opportunity to overturn the
agreed that courts of appeals have the authority to reinstate deportation order, or choose to challenge the order and
voluntary departure, but only when “(1) the INS is wielding thereby forgo the benefits of voluntary departure. Ramsay, 14
F.3d at 211-12. However, as the court in Castaneda noted, a
alien ordered deported “does not lose something when offered
2 the additional opportunity to depart voluntarily. On the
It is clear that under the IIR IRA this court has no authority to review
discretionary grants and denials of voluntary departure. 8 U.S.C. contrary, he retains precisely the same right to judicial review
§ 1229c(f) (“No court shall have jurisdiction over an appeal from denial he would otherwise have had; it is only that his alternative to
of a req uest for an ord er of vo luntary departure.”). continued litigation has been made more attractive.” 23 F.3d
3 at 1582. Furthermore, the choice is not as dire as the First
In Zazue ta-Carrillo v. Ashcroft, 322 F.3d 11 66, 1172 -74 (9th Cir. and Fourth Circuits predict. For example, in this case,
2003), the Ninth Circuit held that in light of the new provisions in the
IIRIR A, Contreras-Aragon is no longer go od law. Harchenko could have requested an extension of the
No. 02-3971 Harchenko v. INS, et al. 13 14 Harchenko v. INS, et al. No. 02-3971
voluntary departure period from the district director, but he he chose to file an untimely motion to reopen. Harchenko has
failed to do so. He was placed on notice of this option and of cited no authority for the proposition that this court may
the consequences for failing to do so in both the IJ’s and the reinstate his period of voluntary departure in the absence of a
BIA’s initial decisions denying his request for asylum. timely-filed motion to reopen. If the BIA lacks the authority
Having failed to follow this procedure, Harchenko should not to reinstate voluntary departure when the proceedings have
now be allowed to obtain relief he was offered earlier but not been reopened, then surely this court does as well.
declined to accept.
IV.
The other rationale offered by courts that have assumed the
authority to reinstate voluntary departure is a concern for For the foregoing reasons, the petition for review of the
judicial economy, but this concern is similarly misplaced. In decision of the BIA is denied.
Umanzor-Alvarado, the First Circuit noted that if “the
government does not suggest it will present the district
director with any other reason for refusing reinstatement[,]
. . . to require the petitioner to [then] apply to the district
director to pass upon the matter would be pointless, for the
director could not lawfully refuse reinstatement.” 896 F.2d at
16. This reasoning “reflects both misplacement of the burden
of persuasion and application of the wrong standard for the
district director’s decision.” Castaneda, 23 F.3d at 1582.
The district director has discretion to grant voluntary
departure. It is not legally mandated. “[E]ven if the alien has
not done anything to render [himself] legally ineligible for
reinstatement or extension of voluntary departure, the district
director always retains discretion to grant or deny the
privilege.” Id.
Finally, it is worth noting the circumstances of Harchenko’s
appeal in this case. This is not a situation where an alien is
appealing the initial denial of his asylum application and
asking this court to reinstate the grant of voluntary departure
in the event that it decides to affirm the BIA. Nor is it a case
where a petitioner has filed a motion seeking to stay voluntary
departure pending adjudication of his initial appeal. See
Nwakanma v. Ashcroft, 352 F.3d 325, 327-28 (6th Cir. 2003).
In this case, Harchenko filed an untimely motion to reopen
and alternatively requested reinstatement of his earlier grant
of voluntary departure. It does not appear that he requested
this form of relief in his initial appeal to this court. Instead,