Bhiski v. Ashcroft, 03-3291.

• Decision Date: 02 July 2004
• Docket Number: No. 03-3291.,03-3291.
• Parties: Ahmed BHISKI, Petitioner v. John ASHCROFT, Attorney General of the United States; The United States Bureau of Citizenship and Immigration Services, Respondents.
• Court: U.S. Court of Appeals — Third Circuit

373 F.3d 363

Ahmed BHISKI, Petitioner v. John ASHCROFT, Attorney General of the United States; The United States Bureau of Citizenship and Immigration Services, Respondents.

No. 03-3291.

United States Court of Appeals, Third Circuit.

Argued May 3, 2004.

July 2, 2004.

COPYRIGHT MATERIAL OMITTED

Don W. Pak (Argued), Philadelphia, for Petitioner.

Peter D. Keisler, Assistant Attorney General Civil Division, Linda S. Wernery, Senior Litigation Counsel, William C. Minick (Argued), Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, for Respondent.

Before SLOVITER, FUENTES, and BECKER, Circuit Judges.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

Petitioner Ahmed Bhiski, a citizen of Tunisia, petitions for review of the decision of the Board of Immigration Appeals (BIA) dismissing his appeal of the Immigration Judge's (IJ) grant of voluntary departure and the BIA's denial of his Motion to Remand and Stay of Removal for adjustment of status based on a visa petition filed after Bhiski's marriage. We have jurisdiction to consider the petition for review under 8 U.S.C. § 1252(a)(1).

I. FACTS AND PROCEDURAL HISTORY

Bhiski entered the United States on August 13, 1999, and soon acquired an F-1 student visa. When he stopped attending class at the Community College of Philadelphia, thus violating his F-1 status, the then-Immigration and Naturalization Service (INS)¹ served him a Notice to Appear on May 8, 2002. On May 16, 2002, Bhiski appeared before the IJ without counsel. The IJ informed him that "[Y]ou have a right to be represented by a lawyer, but [neither] the United States Government nor this Court will provide that lawyer for you. If you want an attorney, I can postpone this case and give you time to seek an attorney. Do you understand that?" A.R. at 93. Despite not having an attorney present, Bhiski responded "yeah" when asked if he wanted to proceed on that day. A.R. at 93.

After having ascertained Bhiski's willingness to commence proceedings, the IJ began eliciting information from him. He asked Bhiski whether he had any relatives in the United States and whether he had any reason to fear returning to Tunisia, and then the IJ stated that he was "not authorized to permit [Bhiski] to remain in the United States." A.R. at 100. When the IJ discovered that Bhiski had a long-term girlfriend, Rose Mary Maturo, he explained that it would be difficult to convince the INS that his marriage was bona fide if he married her sometime before his voluntary departure date. The IJ nonetheless explained Bhiski's options in the event that he did marry:

You go by the INS. There's a big office [in Philadelphia], and, you know, show them the order, say you have to leave by July 1, I got married, can I get an extension of the voluntary departure. If they say no, then you got to get out of here and leave because if you get married, your girlfriend can petition for you, in other words, apply for you to get a green card, but it takes a while, and you would have to leave in the meantime, return to Tunisia and wait there patiently and then if it's granted, you would be issued an immigrant visa.

A.R. at 102.

The IJ then explained that Bhiski could not overstay his voluntary departure date:

You can't wait until the day before your — my voluntary departure expires and ask for an extension because it won't be given. You have to apply prior to the expiration of it at the INS in Philadelphia, and if they say yeah, that's okay, but if they say no, you got to get out. I'm also going to put a bond on you in the amount of $6,500. If you don't leave and you violate my order of voluntary departure, the money will not get returned to whoever paid it. They would lose that money, and the deportation order would be in effect, and if that occurs, even if you got married, you're going to probably be barred from coming back to this country for a number of years.

A.R. at 103. Bhiski indicated that he understood the IJ's explanations and warnings. The IJ set Bhiski's voluntary departure date as July 1, 2002, giving him 45 days after the hearing to "wrap up [his] affairs." A.R. at 101.²

On June 12, 2002,³ shortly before his departure date, Bhiski married Maturo, and on June 13, 2002, the newly married couple filed an I-130 visa petition on his behalf based upon their marital relationship. A.R. 33-34. On June 14, 2002, Bhiski filed an appeal to the BIA, claiming that the IJ violated his due process rights by proceeding without counsel. Bhiski then overstayed his departure date, and subsequently filed a Motion to Remand and Stay of Removal on January 28, 2003 to determine his application for the adjustment of status based on his visa petition.

On July 7, 2003, the BIA dismissed the appeal concerning the alleged due process violations, stating Bhiski "did not provide evidence on his notice to appeal of how his hearing was prejudiced by these alleged deficiencies. Furthermore, [Bhiski] did not provide the BIA with a brief detailing the factual and legal basis of his claims. Accordingly, we will dismiss" the appeal. A.R. at 2. The BIA also denied the motion for remand, stating that "[Bhiski's] case does not meet the requirements of Matter of Velarde ... because the Department of Homeland Security... opposes his motion." A.R. at 2 (citations omitted).

In his petition for review, Bhiski argues that the BIA erred in dismissing his appeal because the IJ violated his due process rights when the IJ (1) failed to ensure that he was financially capable of leaving under voluntary departure, (2) failed to explain the consequences of voluntarily departing, and (3) proceeded with the hearing despite the absence of an attorney for Bhiski. Bhiski further argues that the BIA erred in denying his motion for remand because he met the test, formulated in Matter of Velarde-Pacheco, 23 I. & N Dec. 253 (BIA 2002), for determining immigration proceedings based on a marriage entered into after the commencement of proceedings.

II. DISCUSSION

A. Due Process Appeal

Before turning to the merits of Bhiski's due process claims, we must decide whether we have the jurisdiction to do so. The Government argues that we lack jurisdiction because Bhiski's failure to provide a brief in support of his appeal to the BIA, and the cursory statement he provided on the Notice of Appeal to the BIA, amount to a failure to exhaust his administrative remedies. Exhaustion is a jurisdictional prerequisite, as Section 1252(d) of Title 8 of the United States Code states, "A court may review a final order of removal only if ... the alien has exhausted all administrative remedies available to the alien as of right...." Id. Whether the failure to file a brief in support of a Notice of Appeal before the BIA bars our review is an issue of first impression for this court.

Four courts of appeals have previously decided the issue, with two courts on each side of the jurisdictional fence. The Court of Appeals for the Fifth Circuit held that it was without jurisdiction to hear an appeal that otherwise appeared as though it had substantial merit because the alien's failure to provide a brief or exceed "generalized statements of the reasons" for the appeal before the BIA was tantamount to a failure to exhaust his administrative remedies. Townsend v. INS, 799 F.2d 179, 181-82 (5th Cir.1986) (internal quotation marks and citation omitted). The Court of Appeals for the Eleventh Circuit followed the example of the Fifth Circuit and found persuasive the argument that "because the petitioners failed to perfect their appeal to the Board, judicial review is barred because they have not exhausted their administrative remedies." Bayro v. Reno, 142 F.3d 1377, 1378-79 (11th Cir.1998).

The Courts of Appeals for the Ninth and First Circuits disagree. See Ladha v. INS, 215 F.3d 889 (9th Cir.2000); Athehortua-Vanegas v. INS, 876 F.2d 238 (1st Cir.1989). Athehortua-Vanegas is the more comprehensive of these decisions. It observed that in failing to file a brief to accompany the notice of appeal, the alien "did not overlook the Board, or ignore it, or attempt to appeal directly to the courts from the IJ's order. He ... [merely] stumbled on [the step]." Athehortua-Vanegas, 876 F.2d at 240. The court held that because the alien actually availed himself, however clumsily, of the appeal, he exhausted the remedy, and no longer had administrative recourse. Id.

Even if we were to follow the Eleventh and Fifth Circuits in holding that a brief is required to perfect the BIA appeal, it would be unduly harsh to so hold in this case where Bhiski made some effort to exhaust, albeit insufficient. However, we will not so hold because there is nothing in the regulatory scheme that compels that conclusion.

First, the regulation governing the Notice of Appeal does not require the filing of a brief beyond identifying the specific reasons for the appeal. The applicable regulation states,

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 § 1003.1(d)(2)(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. § 1003.3(b).

In addition, that regulation provides that the appellant "must also indicate in the Notice of Appeal ... whether he or she desires oral argument before the Board and whether he or she will be filing a separate written brief or statement in support of the appeal." Id. The fact that the regulation requires the alien to indicate whether s/he will be filing a brief certainly suggests that filing a brief is optional rather than mandatory.

Second, the Notice of Appeal Form EOIR-26 itself...