Bachynskyy v. Holder

• Decision Date: 15 December 2011
• Docket Number: No. 10–2793.,10–2793.
• Citation: 668 F.3d 412
• Parties: Nazar BACHYNSKYY, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

668 F.3d 412

Nazar BACHYNSKYY, Petitioner,
v.
Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

No. 10–2793.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 22, 2011.Decided Dec. 15, 2011.

[668 F.3d 413]

Justin R. Burton, Matthew Scott Kriezelman (argued), Attorneys, Kriezelman Burton & Associates, Chicago, IL, for Petitioner.

Gregory D. Mack (argued), OIL, Attorneys, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before WILLIAMS and TINDER, Circuit Judges, and GOTTSCHALL, District Judge.^*WILLIAMS, Circuit Judge.

Nazar Bachynskyy is a twenty-eight year old Ukrainian citizen who entered the United States without being admitted or

[668 F.3d 414]

paroled. After being turned over to the legacy Immigration and Naturalization Service at a truck stop weigh station, removal proceedings were commenced. Bachynskyy conceded removability, but sought withholding of removal and protection under the Convention Against Torture. At the conclusion of the hearing on his claims, the Immigration Judge stated that she was continuing the case for four months, but stated that “[i]f I render a written decision before that date, you don't need to come back to court. Just make sure you stay in touch with your lawyers.” Bachynskyy did not specifically request voluntary departure at this hearing, and the IJ did not discuss the possibility or requirements of voluntary departure at the conclusion of the hearing. In the written decision, issued only three days after the hearing, the Immigration Judge denied Bachynskyy's withholding and Convention Against Torture claims, but granted Bachynskyy voluntary departure. The order stated that Bachynskyy was required to post a $500 bond within five days. Bachynskyy's lawyer at the time, however, allegedly did not receive the decision until the day before the bond was due, and the bond was never paid.

In his direct appeal to the Board of Immigration Appeals, Bachynskyy filed a motion to reinstate voluntary departure, alleging that notice regarding the bond was deficient. While the Board was considering the motion, new regulations went into effect requiring immigration judges to advise the noncitizen, before granting voluntary departure, of the amount of the voluntary departure bond and the duty to post bond within five business days. 8 C.F.R. § 1240.26(c)(4) (2009). The Board dismissed Bachynskyy's appeal and rejected his request to reinstate voluntary departure. Bachynskyy filed a motion to reopen with the Board. The Board denied his petition, finding that the new regulations regarding notice were not retroactive. This petition for review followed.

We find that the warnings required by the current regulations regarding voluntary departure are not retroactively applicable to grants of voluntary departure made before January 20, 2009. We also find that Bachynskyy cannot raise a colorable due process claim as there was no procedural defect based on the lack of advisals, and Bachynskyy did receive (though somewhat flawed) notice of the bond requirement. Therefore, we deny in part, and dismiss in part, the petition for review.

I. BACKGROUND

Nazar Bachynskyy, a twenty-eight year old citizen of Ukraine, entered the United States on July 2, 2000 without being admitted or paroled. Bachynskyy, a truck driver, was turned over to the legacy Immigration and Naturalization Service (“INS”) after admitting to officials at a weigh station that he lacked documentation. On January 23, 2003, the legacy INS initiated removal proceedings by filing a Notice to Appear (“NTA”) in which Bachynskyy was charged with removability under section 212(a)(6)(A)(i) of the Immigration and Nationality Act (“INA”) for being an alien present in the United States without being admitted or paroled. On February 5, 2003, through his counsel Slava Tenenbaum, Bachynskyy filed a motion to change venue from the Immigration Court in Kansas City to Chicago. In the motion, Bachynskyy admitted the allegations in the NTA, and conceded removability. On March 14, 2003, the Immigration Court in Kansas City granted the change of venue.

On August 26, 2003, Bachynskyy filed an application for asylum, withholding of removal, and protection under the Convention

[668 F.3d 415]

Against Torture (“CAT”). On January 17, 2005, Tenenbaum withdrew his appearance on behalf of Petitioner, and new counsel, Christopher Grobelski, entered an appearance on his behalf. Bachynskyy later withdrew his application for asylum.

On April 1, 2008, the Immigration Judge (“IJ”) conducted a full merits hearing regarding Bachynskyy's withholding and CAT claims. At the conclusion of the hearing, the IJ noted that she wanted to more carefully review the background information. She stated that she was continuing the case to July 29, 2008 for a decision, but also stated that “[i]f I render a written decision before that date, you don't need to come back to court. Just make sure you stay in touch with your lawyers.” Bachynskyy did not specifically request voluntary departure at this hearing, and the IJ did not discuss the possibility or requirements of voluntary departure at the conclusion of the hearing.

Three days later, on April 4, 2008, the IJ issued a written opinion, finding Bachynskyy removable, and denying his application for withholding of removal and his CAT claim. However, the IJ granted Bachynskyy voluntary departure, stating that he “is required to post a $500.00 departure bond to [e]nsure compliance with the order.” The decision also stated that “if [Bachynskyy] fails to depart as required or otherwise fails to comply with this order, the above order granting voluntary departure shall be withdrawn without further notice or proceedings....”

The written decision was mailed to the Law Offices of Christopher Grobelski in Chicago, and the date on the transmittal form was April 4, 2008. The cover page also stated that a Notice of Entry as Attorney before the Board of Immigration Appeals (“BIA”) must be filed on or before May 2, 2008. Bachynskyy did not pay the $500 bond before the 5 business-day period expired on April 11, 2008.

On May 2, 2008, Bachynskyy appealed the IJ's decision to the BIA. The Department of Homeland Security (“DHS”) opposed the appeal on August 27, 2008, and informed the BIA that Bachynskyy had not paid the voluntary departure bond. ¹ Bachynskyy's counsel, Grobelski, filed a motion to reinstate voluntary departure with the BIA on September 15, 2008. The motion stated that:

We would like to bring to the Board's attention that the Respondent's attorney did not receive the IJ's [April 4, 2008] decision until April 10, 2008, which is probably due to Chicago having the nation's worst postal service. Please see attached Exhibit B, an article documenting Chicago's postal service as the worst in the country.The motion also stated that a “late attempt to post bond with DHS was unsuccessful,” but did not provide specifics for the attempt. Bachynskyy's counsel also argued that:

Five days to post a bond in cases when the order of IJ is mailed to the Respondent is not a reasonable period of time to be able to do so, especially when notice is served via the U.S. Postal Service (USPS). The Board itself has, for a long time, recognized and “strongly encourage[d]” the use of overnight courier to ensure timely delivery. Since it was not the Respondent's fault, but rather the result of inadequate service on the part of USPS, we request that the Board preserve the relief of voluntary departure in case the Respondent's appeal is denied.

[668 F.3d 416]

While the BIA was considering the motion, new regulations went into effect regarding the grant of voluntary departure. Effective January 20, 2009, the regulations, among other changes, now require immigration judges to advise the noncitizen, before granting voluntary departure, of the amount of the voluntary departure bond and the duty to post bond within five business days. 8 C.F.R. § 1240.26(c) (2009).

On January 8, 2010, the BIA dismissed Bachynskyy's appeal and rejected his request to reinstate voluntary departure. Bachynskyy did not file a petition for review of the BIA's January 8, 2010 decision. On February 16, 2010, Bachynskyy, through new (and present) counsel, filed a motion to reopen with the BIA, arguing that the IJ failed to provide him with notice regarding his responsibilities concerning voluntary departure before granting voluntary departure, and that this lack of notice deprived him of an opportunity to understand the significance of posting the $500 bond. He argued that he was prejudiced in not receiving the full advisals as they relate to the grant of voluntary departure, and that the IJ's decision was received several days after the IJ entered the order, which prevented him from posting bond within five business days.

The BIA denied his petition on July 8, 2010, finding that the new regulations regarding notice were not retroactive, and that when Bachynskyy failed to post the required bond, “there was no voluntary departure order for the Board to reinstate,” and thus the BIA on Bachynskyy's appeal properly declined to reinstate the IJ's grant. Finally, the Board declined to reopen Bachynskyy's case because he had not submitted supporting affidavits or other evidentiary material warranting a hearing. This petition for review followed.

II. ANALYSIS

We start our analysis with the question of jurisdiction. The government argues that we lack jurisdiction under 8 U.S.C. § 1229c(f), which states that “[n]o court shall have jurisdiction over an appeal from denial of a request for an order of voluntary departure.” See also Pawlowska v. Holder, 623 F.3d 1138, 1142 (7th Cir.2010). It is clear that the INA bars review of the agency's discretionary decision to deny voluntary departure. See Lopez–Chavez v. Ashcroft, 383 F.3d 650, 652 (7th Cir.2004) (“As we indicated earlier, this case does not present the question whether courts have...