Tatyana Sova v. Eric Holder, Jr.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0865n.06
Case No. 09-3718
UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT Dec 20, 2011
LEONARD GREEN, Clerk
TATYANA ANATOLYEVNA SOVA; )
NATALYA M. ZVONAREVA, )
)
Petitioners, )
) ON PETITION FOR REVIEW
v. ) FROM A DECISION OF THE
) BOARD OF IMMIGRATION
ERIC H. HOLDER, JR., Attorney General, ) APPEALS
)
Respondent. )
)
_______________________________________ )
BEFORE: BATCHELDER Chief Judge; SILER and COLE, Circuit Judges.
ALICE M. BATCHELDER, Chief Judge. Petitioner Tatyana Antolyevna Sova
(“Tatyana”) seeks review of the May 13, 2009, order of the Board of Immigration Appeals (“BIA”)
affirming the order of the Immigration Judge (“IJ”) finding Tatyana removable and denying her
request for a hardship waiver under 8 U.S.C. § 1186a(c)(4). In this petition for review, Tatyana
primarily alleges procedural errors. We DISMISS her petition for review.
I.
Tatyana is a native and citizen of Russia. She met her now-ex-husband, Walter Sova
(“Walter”), a United States citizen, at a social gathering during his visit to Russia around June 1995.
They maintained contact with each other, and Walter visited her again in December 1995. Around
April 1996, Walter proposed to Tatyana over the phone. On July 13, 1996, Tatyana, along with her
No. 09-3718, Sova v. Holder
daughter, Natalya Zvonareva (“Natalya”),1 entered the United States on a K-1 fiancée visa. Walter
and Tatyana were married on July 18, 1996. Shortly thereafter, and on the basis of this marriage,
Tatyana had her visa status adjusted to that of a conditional permanent resident. See 8 U.S.C. §
1186a(a)(1).
The marriage did not last. Walter filed for divorce, and on November 13, 1997, the marriage
was judicially terminated in Michigan state court. On July 29, 1998, Tatyana filed a petition to
remove conditions from her permanent resident status. See id. § 1186a(c). Tatyana applied for a
hardship waiver under § 1186a(c)(4).
On August 3, 1999, the Immigration and Naturalization Service (“INS”) interviewed Tatyana
under oath regarding her hardship-waiver petition. In January, July, and October 2003, INS and then
the Department of Homeland Security (“DHS”)2 informed Tatyana via letter that it planned to deny
her petition to remove the condition on her status because she had failed to show that her marriage
was entered into in good faith.
On October 2, 2003, DHS denied Tatyana’s petition to remove the condition and terminated
her status. On October 7, 2003, DHS served Tatyana with a notice to appear, charging her with
being removable as an alien whose conditional permanent resident status was terminated, id. §
1227(a)(1)(D)(i), and as an alien who gained entry into the United States on the basis of a fraudulent
marriage, id. § 1227(a)(1)(G)(i). Tatyana denied the charges of removability and asked the IJ to
1
W hile Natalya was a party to the proceedings before the IJ and BIA, Tatyana’s brief before this court informs
us that Natalya has since become eligible for a green card and was dismissed as a party by the BIA on December 30,
2009.
2
On M arch 1, 2003, INS ceased to exist as an agency when most of its powers and responsibilities were
transferred to the newly-created DHS.
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review her request for a hardship waiver based on her claim that she entered into the marriage in
good faith.
On November 15, 2006, the IJ held a hearing. Tatyana testified that she had entered into the
marriage in good faith and that the marriage bore all the indicia of a regular, valid marriage. She also
submitted a notarized letter from Walter, dated July 20, 1998, in which Walter took responsibility
for the divorce, explained that the marriage was entered into in good faith, and pleaded with
authorities to let Tatyana stay in the country. DHS submitted evidence that included a statement that
Walter provided to INS, retracting his July 1998 letter. In it, he stated that he had only written the
July 1998 letter because Tatyana promised to remarry him if he did. He also included a copy of a
letter he had written in February 1999 to Tatyana’s mother in Russia explaining the divorce and other
details of their failed relationship. On December 15, 2006, the IJ denied Tatyana’s waiver request,
sustained the charges of removability, and ordered her and Natalya removed to Russia. The IJ
concluded that Tatyana failed to carry her burden of showing that her marriage was entered into in
good faith. The IJ noted a lack of corroborating documentary evidence.
Tatyana appealed to the BIA the denial of her good faith waiver. She also moved for remand
on the basis of ineffective assistance of counsel. On May 18, 2009, the BIA dismissed Tatyana’s
appeal and denied the motion to remand. Tatyana filed this petition for review.
II.
Under 8 U.S.C. § 1186a, an alien who attains conditional permanent resident status by
marrying a United States citizen must file a joint petition with her spouse to remove the “conditional
basis” of her status. Id. § 1186a(c)(1). Such an alien may, however, seek a waiver of the joint-
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petition filing requirement by showing that “the qualifying marriage was entered into in good faith
by the alien spouse, but the qualifying marriage has been terminated (other than through the death
of the spouse) and the alien was not at fault in failing to meet the [joint-petition filing
requirements].” Id. § 1186a(c)(4)(B). Grant of the waiver removes the condition on the permanent
resident status. Id. § 1186a(c)(4). The decision to grant a waiver is within “the Attorney General’s
discretion.” Id.
Where the BIA adopts the IJ’s decision and supplements that decision with its own
comments, as in this case, we review both the BIA’s and the IJ’s opinions. See Gilaj v. Gonzales,
408 F.3d 275, 283 (6th Cir. 2005) (per curiam). Because the decision concerning the good faith
waiver is entrusted to the Attorney General’s discretion, we review the denial of the waiver only for
purely legal errors. See 8 U.S.C. § 1252(a)(2)(B); Billeke-Tolosa v. Ashcroft, 385 F.3d 708, 711 (6th
Cir. 2004). We review de novo such questions of law. Khalili v. Holder, 557 F.3d 429, 435 (6th
Cir. 2009).
Tatyana argues that the IJ erred by allowing DHS to present letters from her ex-husband
Walter without affording her an opportunity to cross-examine him at the hearing. She argues that
this failure constituted a violation of her regulatory, statutory, and constitutional rights. The record
reflects that DHS requested that the IJ issue a subpoena to two different addresses to compel Walter
to appear to testify. One subpoena was returned marked by the postal service as “Unclaimed,” while
the other was returned marked “Forwarding Time Expired.” Tatyana, however, never requested that
the IJ issue a subpoena for Walter. Though Walter did not testify for either party, both parties
submitted conflicting letters from him, described above.
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Tatyana’s regulatory claim fails. The IJ has “exclusive jurisdiction to issue subpoenas
requiring the attendance of witnesses . . . . An Immigration Judge may issue a subpoena upon his
or her own volition or upon application of the Service or the alien.” 8 C.F.R. § 1003.35(b)(1). If
the IJ is unsuccessful in obtaining the appearance of the witness, it is told to enlist the help of the
district attorney:
If a witness neglects or refuses to appear and testify as directed by the subpoena
served upon him or her in accordance with the provisions of this section, the
Immigration Judge issuing the subpoena shall request the United States Attorney for
the district in which the subpoena was issued to report such neglect or refusal to the
United States District Court and to request such court to issue an order requiring the
witness to appear and testify . . . .
Id. § 1003.35(b)(6).
As this court has recognized, “[i]t is an elemental principle of administrative law that
agencies are bound to follow their own regulations.” Wilson v. Comm’r of Soc. Sec., 378 F.3d 541,
545 (6th Cir. 2004). Here, however, because Tatyana did not comply with the regulation she is not
entitled to the benefits of it. The regulation requires that the party applying for the subpoena “state
in writing or at the proceeding, what he or she expects to prove by such witnesses . . . and to show
affirmatively that he or she has made diligent effort, without success, to produce the same.” 8 C.F.R.
§ 1003.35(b)(2). Here, it was the Government that applied for the subpoena, not Tatyana. There is
no evidence in the record that Tatyana submitted any such application or made such showings.
While the enforcement provision is worded in mandatory terms, it applies only to subpoenas served
upon the witness “in accordance with the provisions of this section.” Id. § 1003.35(b)(6). Tatyana
cannot claim the benefits of the subpoena enforcement regulation because she did not herself comply
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with the regulation. See Stolaj v. Holder, 577 F.3d 651, 659 (6th Cir. 2009) (holding that IJ did not
abuse his discretion when he denied petitioner’s request for a subpoena, where the petitioner did not
comply with 8 C.F.R. § 1003.35(b)(2)). Cases from other jurisdictions have granted relief for an IJ’s
failure to allow or enforce a subpoena, but only when the petitioner properly applied for a subpoena
under 8 C.F.R. § 1003.35(b). See Malave v. Holder, 610 F.3d 483, 487 (7th Cir. 2010) (granting
relief where IJ denied application for subpoena even though petitioner had complied with
regulations); Ramos de Rojas v. Gonzales, No. 04-74682, 2007 WL 705832, at *1–2 (9th Cir. Mar.
6, 2007) (mem.) (granting relief where IJ did not properly enforce a subpoena granted upon the alien
petitioner’s proper application).
Tatyana’s statutory claim also fails. Section 1229a states that in removal proceedings, “the
alien shall have a reasonable opportunity . . . to cross-examine witnesses presented by the
Government.” 8 U.S.C. § 1229a(b)(4)(B). Tatyana claims that she was denied a “reasonable
opportunity” to cross-examine Walter because DHS presented letters from Walter and the IJ did not
do enough to secure Walter’s presence at the hearing. In Dallo v. INS, 765 F.2d 581, 586 (6th Cir.
1985), the government issued three subpoenas to a particular witness, all of which failed to secure
the witness’s presence to testify. The court held that three attempts constituted “reasonable effort[s]”
by the government. Id. Under those circumstances, the court held it was permissible for the
government to present hearsay instead of live testimony subject to cross-examination. Id. We
conclude that the attempts to subpoena Walter at two different addresses were reasonable efforts, and
the IJ did not violate Tatyana’s statutory right to a “reasonable opportunity . . . to cross-examine”
Walter.
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Tatyana’s claim that her due process right to cross-examine a witness was violated also fails
because there is no such constitutional right in an immigration proceeding seeking discretionary
relief. The hearing was not a criminal proceeding, so the Confrontation Clause does not apply. See
Stolaj, 577 F.3d at 659. Any right to cross-examine must be found in the Fifth Amendment’s Due
Process Clause. Id. But there is no liberty interest in an immigration proceeding seeking
discretionary relief, and where there is no life, liberty, or property interest, there is no due process
protection. See Patel v. Gonzales, 470 F.3d 216, 220 (6th Cir. 2006); see also Jebeili v. Holder, 421
F. App’x 547, 549 (6th Cir. 2011) (applying rule in discretionary waiver context).3
Tatyana also argues that the BIA engaged in improper fact finding when it cited portions of
the letters Walter sent to INS/DHS at various times. While the BIA may not engage in additional
fact finding, see In re Adamiak, 23 I. & N. Dec. 878, 880 (BIA 2006), it is clear that the BIA did not
engage in such fact finding here. The BIA summarized the evidence in the record and concluded that
the IJ’s decision was not clearly erroneous. The BIA discussed the letters from Walter and
observed—just as the IJ did—that Tatyana did not present sufficient corroborating evidence. The
BIA did not settle any unresolved factual disputes.
Lastly, Tatyana argues that her counsel was ineffective. Because immigration proceedings
are not criminal in nature, any right to effective assistance of counsel rests only on the Due Process
Clause. Denko v. INS, 351 F.3d 717, 723 (6th Cir. 2003). But as we have already observed, we have
3
Tatyana may also be arguing that her due process rights were also violated when the agency failed to follow
its own regulation. W e noted above that the agency did not violate its own regulation. But even if it had, while “[a]n
agency’s failure to follow its own regulations ‘tends to cause unjust discrimination and deny adequate notice’ and
consequently may result in a violation of an individual’s constitutional right to due process,” Wilson, 378 F.3d at 545
(quoting Sameena, Inc. v. United States Air Force, 147 F.3d 1148, 1153 (9th Cir. 1998)), we are unaware of any case
that states that every violation of an administrative regulation equals a due process violation.
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held that there is no right to due process in a discretionary hearing. Without due process rights, there
can be no right to effective assistance of counsel. See, e.g., Reda v. Mukasey, 294 F. App’x 182, 185
(6th Cir. 2008) (denying petitioner’s claim of ineffective assistance of counsel in discretionary relief
hearing).4
III.
For these reasons we DISMISS the petition for review.
4
Tatyana’s counsel suggested at oral argument for the first time, and again in a Rule 28(j) letter, that we remand
the case to the BIA because the BIA applied the standard of Matter of Compean, 24 I & N Dec. 710 (BIA 2009), in
deciding Tatyana’s motion to remand for ineffective assistance of counsel. Shortly after the BIA’s decision, the Attorney
General vacated the opinion in Compean and instructed that DHS should use the old standard of Matter of Lozada, 19
I & N Dec. 637 (BIA 1988). See In re Compean, 25 I & N Dec. 1, 3 (BIA 2009). Regardless of the merits of this
argument, there is no reason why this argument could not have been raised by counsel earlier. It is deemed waived. See
Vaughn v. Lawrenceburg Power Sys., 269 F.3d 703, 714 (6th Cir. 2001).
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