Csekinek v. I.N.S.

• Decision Date: 15 December 2004
• Docket Number: No. 02-3481.,02-3481.
• Citation: 391 F.3d 819
• Parties: Ferenc CSEKINEK, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 819

391 F.3d 819

Ferenc CSEKINEK, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 02-3481.

United States Court of Appeals, Sixth Circuit.

Submitted: October 31, 2003.

Decided and Filed: December 15, 2004.

ON BRIEF:

Michael Varga-Sinka, Lakewood, Ohio, for Petitioner. Jeffrey J. Bernstein, Richard M. Evans, United States Department of Justice, Washington, D.C., for Respondent.

Before: BATCHELDER and COLE, Circuit Judges; HOOD, District Judge.^*

BATCHELDER, J., delivered the opinion of the court, in which HOOD, D.J., joined. COLE, J. (pp. 825-32), delivered a separate dissenting opinion.

OPINION

BATCHELDER, Circuit Judge.

Petitioner, Ferenc Csekinek, appeals the decision of the Board of Immigration Appeals ("BIA") affirming the finding of the Immigration Judge ("IJ") that Csekinek is removable pursuant to 8 U.S.C. § 1227(a)(2)(E)(i) based on his March 1997 domestic violence conviction. He also appeals the IJ's decision denying as untimely his application for asylum and denying him withholding of deportation. Csekinek claims that the IJ impermissibly used the date of his sentencing hearing as the date of his domestic violence "conviction," as that term is used in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"). Csekinek argues that an earlier date on which he allegedly pled guilty to the domestic violence charge should have been used as the date of his conviction, and that because that guilty plea was entered before the effective date of the IIRIRA, it cannot be the basis for his being found to be removable. Csekinek also asks this Court to hold that civil deportation proceedings are, in essence, criminal proceedings which can violate the Ex Post Facto Clause contained in Article I of the United States Constitution, or, alternatively, that to apply IIRIRA to him would violate due process. Finally, Csekinek claims that he has demonstrated extraordinary circumstances justifying the untimeliness of his application for asylum, and that his application should not have been rejected on that ground. Because Csekinek's claims are either without merit or are unreviewable, we AFFIRM the judgment of the IJ and the BIA.

I.

Csekinek entered the United States on a B-2 visitor visa. He married a United States citizen in January 1995, and his immigration status was adjusted to that of permanent resident. Csekinek was thereafter twice convicted of domestic violence in the State of Ohio. Following the second conviction, the Immigration and Naturalization Service¹ ("the Service") instituted removal proceedings and served Csekinek with a Notice to Appear. The IJ conducted the first in-person hearing on the merits of the charge of removability on November 19, 1998. After reviewing the only evidence presented with regard to the domestic violence convictions, the IJ concluded that the Service had proven both convictions by clear and convincing evidence. The IJ stated, however, and the Service conceded, that the earlier of the two convictions was not material to the proceedings because it predated IIRIRA.

The IJ found, and Csekinek's counsel conceded, that the date of the second conviction was March 21, 1997, the date on which judgment was pronounced and Csekinek was sentenced. That date was well after the effective date of IIRIRA. The IJ found Csekinek removable pursuant to 8 U.S.C. § 1227(a)(2)(E)(i) on the basis of the second conviction. However, the IJ continued the proceedings in order to permit Csekinek to file an application for asylum, noting that although Csekinek had failed to apply for asylum within one year of his last arrival in the United States or by April 1, 1998, whichever was later, Csekinek's circumstances were sufficiently unusual that he might be able to demonstrate justification for the untimeliness of the application.

Csekinek filed an application for asylum and for withholding of removal, and after several additional continuances, the IJ held another hearing on those matters. At the conclusion of that hearing, the IJ ruled that the Service had proven by clear and convincing evidence that Csekinek was removable under 8 U.S.C. § 1227(a)(2)(E)(i) on the basis of his domestic violence conviction dated March 21, 1997; that Csekinek had not demonstrated cause for his failure to file an application for asylum within the statutory period; that his application for asylum was untimely and that Csekinek was therefore not eligible for asylum; and that Csekinek had not established any basis to support his application for withholding of removal. The IJ therefore ordered Csekinek removed to Hungary and denied the applications for asylum and withholding of removal. The BIA summarily affirmed the IJ's decision and Csekinek timely appealed to this court.

II.

Because the BIA affirmed the decision of the IJ without opinion, the IJ's decision is the final agency determination. 8 C.F.R. § 3.1(a)(7) (2000). Accordingly, it is the IJ's decision that we review in this appeal. We review the IJ's factual determinations under the substantial evidence standard, which requires that we affirm those determinations unless the evidence "`not only supports a contrary conclusion, but indeed compels it.'" Hammer v. INS, 195 F.3d 836, 840 (6th Cir.1999) (quoting Adhiyappa v. INS, 58 F.3d 261, 265 (6th Cir.1995)). We review all questions of law de novo. Id.

Csekinek assigns as error the IJ's determination that his second domestic violence conviction occurred on March 21, 1997, after the effective date of IIRIRA. He correctly notes that IIRIRA defines a conviction as a "formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty or restraint on the alien's liberty to be imposed." 8 U.S.C. § 1101(a)(48)(A). Although he has provided no evidence to support his claim, Csekinek maintains that March 6, 1996, was the date of his conviction because on that date he pled guilty and the judge ordered him to report to probation and imposed a $2,500 personal bond upon him.

Before reaching the question of which date is proper for conviction purposes, we must determine whether Csekinek exhausted his administrative remedies as to this issue. Exhaustion of administrative remedies requires the petitioner to first argue the claim before the IJ or the BIA before an appeal may be taken. 8 U.S.C. § 1252(d)(1); Juarez v. INS, 732 F.2d 58, 59 (6th Cir.1984). The petitioner's failure to do so strips this Court of jurisdiction to review the BIA's decision. 8 U.S.C. § 1252(d)(1); Perkovic v. INS, 33 F.3d 615, 619 (6th Cir.1994). The INS contends that Csekinek never argued before the IJ that his second conviction predated the effective date of IIRIRA, and this court therefore lacks jurisdiction to review this claim. Csekinek maintains that he either raised the error under an umbrella assignment of errors or that he preserved the issue by arguing it in a "slightly different manner," citing Cruz-Navarro v. INS, 232 F.3d 1024, 1030 n. 8 (9th Cir.2000).

It is clear that Csekinek did not raise this assignment of error before the BIA. The regulations in effect at the time that Csekinek pursued his appeal to the BIA required that his Notice of Appeal explicitly identify the grounds for his appeal.

(b) Statement of the basis of appeal.

The party taking the appeal must identify the reasons for the appeal in the Notice of Appeal (Form EOIR-26 or Form EOIR-29) or in any attachments thereto, in order to avoid summary dismissal pursuant to § 3.1(d)(1-a)(I). The statement must specifically identify the findings of fact, the conclusions of law, or both, that are being challenged. If a question of law is presented, supporting authority must be cited. If the dispute is over the findings of fact, the specific facts contested must be identified.

8 C.F.R. § 3.3(b) (2000).

In his Notice of Appeal to the BIA, Csekinek stated ten grounds for appeal. Except for the umbrella assignment of error, each ground was specific and particularized, and made no mention of any claim that his conviction predated the effective date of IIRIRA. The umbrella assignment of error states, "Other errors of law and facts were made which will be fully cited and briefed upon receipt of the transcripts of the hearing." This general statement contains nothing that is required by Section 3.3(b), and is wholly inadequate to raise any claim before the BIA. Viewed in the most charitable light, his "umbrella" assignment of error is a general objection to the decision of the IJ. The regulations contain no provision authorizing the use of a general objection to preserve any issue for review.

Csekinek alternatively contends that he argued this issue "in a slightly different manner" in front of the IJ and has therefore preserved this issue on appeal. See Cruz-Navarro, 232 F.3d at 1030 n. 8. Failing to argue an issue at all before the IJ is not the equivalent of arguing the issue in a slightly different manner. And Csekinek not only failed to argue the issue at all, he conceded the point. Upon being told the effective date of the IIRIRA, Csekinek's counsel responded,

Q. The reason I ask is because in fact the 1997 March date refers to his sentencing but he —

A. Which is unfortunately the date when the conviction was final.

Q. Considered final, okay.

This exchange clearly indicates that Csekinek acknowledged and conceded that, for purposes of this removal hearing, the date of his conviction was the date of his sentencing hearing. We hold that Csekinek failed to exhaust his administrative remedies with regard to this assignment of error, and that we therefore lack jurisdiction to consider it.

Even if we could find that Csekinek exhausted his administrative remedies, we...