Denko v. I.N.S.
| Citation | 351 F.3d 717 |
| Decision Date | 08 December 2003 |
| Docket Number | No. 02-3746.,02-3746. |
| Parties | Svitlana DENKO, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
David W. Leopold, (argued and briefed), Cleveland, Ohio, for Petitioner.
Greg D. Mack (argued and briefed), Emily A. Radford (briefed), Allen W. Hausman, United States Department of Justice, Washington, DC, for Respondent.
ON BRIEF:
David W. Leopold, Cleveland, Ohio, for Petitioner. Greg D. Mack, Emily A. Radford, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Nadine K. Wettstein, AMERICAN IMMIGRATION LAW FOUNDATION, Washington, D.C., for Amicus Curiae.
Nadine K. Wettstein (briefed), American Immigration Law Foundation, Washington, DC, for Amicus Curiae.
Before DAUGHTREY and MOORE, Circuit Judges; CALDWELL, District Judge.*
Petitioner Svitlana Denko ("Denko") appeals the decision of the Board of Immigration Appeals ("BIA" or "Board") to affirm without opinion the Immigration Judge's ("IJ") order of removal against Denko and its decision to deny Denko's motion to rescind the in absentia order of removal. Denko makes two arguments on appeal. First, Denko argues that it was an abuse of discretion for the IJ not to reopen removal proceedings when Denko introduced evidence that her failure to attend her second master-calendar hearing resulted from her attorney's ineffective assistance of counsel and not from any decision on Denko's part to abandon her request for asylum. Second, Denko argues that the regulation permitting the Board summarily to affirm without opinion the IJ's decision, 8 C.F.R. § 1003.1(a)(7), violates established administrative law because it is inconsistent with other provisions of the Immigration and Nationality Act ("INA") and violates the Due Process Clause of the United States Constitution because it fails to produce a separate BIA decision for the court of appeals to review. We AFFIRM the judgment of the IJ and uphold 8 C.F.R. § 1003.1(a)(7)'s summary-affirmance-without-opinion rule as both constitutional and consistent with administrative-law precedent.
Denko came to this country as a lawful nonimmigrant visitor on April 25, 1993, from her native homeland in Ukraine. Her authorization permitted her to stay for no longer than six months. Denko remained in this country well past her six-month authorization, and it was not until March 3, 1998,1 nearly five years after Denko first entered, that she filed an affirmative request for asylum based on religious persecution. Denko is Jewish and claims that, while living in Ukraine, she was persecuted by local Ukrainian nationalists. Denko states that she attempted to secure protection from local government agencies in Ukraine but that none would assist her. She cites as specific examples of persecution, the following: large fines were fraudulently imposed on her business by anti-Semitic local officials, she was harassed and received threats of violence from local police, and she was victimized and beaten by members of the Ukrainian Self Defense, a military unit of the Ukrainian National Army.
After Denko's request for asylum, the INS served Denko on January 27, 1999, with a notice to appear ("NTA") to show cause as to why she did not leave the United States on or before her six-month permission expired. The NTA ordered Denko to appear before the IJ on October 29, 1999, and, according to the INS, included a warning which stated: "If you fail to attend the hearing at the time and place designated in this notice, or any date and time later directed by the Immigration Court, a removal order may be made by the immigration judge in your absence, and you may be arrested and detained by the INS." Appellee's Br. at 5.
At this October initial hearing, Denko was represented by her attorney, Nicoleta Wojnar ("Wojnar"). Denko admitted to the factual allegations against her and that she was removable pursuant to the INA. During this hearing, the IJ advised Denko of the consequences of her failure to appear at the scheduled second master-calendar hearing set for April 7, 2000. In addition, the order issued on October 29 contained a written warning that Denko must appear on April 7, 2000:
Failure to appear at your hearing except for exceptional circumstances may result in one or more of the following actions: (1) You may be taken into custody by the Immigration and Naturalization Service and held for further action[,] OR (2) Your hearing may be held in your absence under section 240(b)(5) of the Immigration and Nationality Act. An order of removal will be entered against you if the Immigration and Naturalization Service established by clear, unequivocal and convincing evidence that a) you or your attorney has been provided this notice and b) you are removable.
Joint Appendix ("J.A.") at 32 (Not. of Hr'g in Removal Proceedings). Another reminder came almost four months before the second master-calendar hearing, when Denko received a letter from Wojnar stating:
If you would like we could request a Motion to the Judge so you do not have to be present on April 07, 2000, in which case I will be there representing you....
Please let our office know if this is something you would like to consider and although we have the right to request it from the Judge, the Judge does not necessarily have to grant it. However, for your convenience we will attempt to do so if you so desire.
J.A. at 30.2 It is the wording of this letter that forms the basis for Denko's assertion of ineffective assistance of counsel.
Denko, noting that English is not her native language, argues that she interpreted Wojnar's letter to mean that Denko's presence was not required at the master-calendar hearing. Moreover, Denko claims that Wojnar informed her that Wojnar would seek a motion to waive appearance. As a result of Wojnar's letter, Denko failed to attend her second master-calendar hearing on April 7, 2000. Consequently, the hearing was conducted in absentia pursuant to § 240(b)(5)(A) of the INA. Because a waiver of Denko's personal appearance was never requested, the IJ ordered Denko removed to Ukraine. The IJ concluded that no special circumstances were present to justify Denko's absence from the hearing.
On June 22, 2000, after retaining new counsel, Denko moved to reopen her removal proceedings based on ineffective assistance of counsel.3 Denko claimed in her accompanying affidavit that she misunderstood the mixed signals contained in Wojnar's letter. Additionally, Denko argued that Wojnar never informed her of Denko's required presence and never sought the waiver that Wojnar agreed to seek in the letter. As evidence of Wojnar's ineffectiveness, Denko pointed out that the INA requires the alien's presence at the master-calendar hearing except in a few special circumstances, none of which was present in Denko's case. On August 3, 2000, the IJ denied Denko's motion. The judge reasoned that:
Apart from [Wojnar's] letter the Respondent has not offered any additional evidence to indicate that there was an agreement to submit a Motion to Waive Appearance nor has the Respondent indicated anything further in her affidavit to support the existence of the "agreement." A plain reading of the letter indicates that Respondent's prior counsel was merely extending an offer to file the motion. It does not rise to the level of an agreement without evidence to indicate that the offer was accepted. There was no evidence of a letter, telephone call, or any other form of communication that would indicate the Respondent accepted the offer and had a reasonable expectation that it would be filed.
J.A. at 22 (Decision & Or. of I.J.). Additionally, the IJ noted that even if Wojnar agreed to file the motion and then failed to perform, Denko had a duty to follow up because Wojnar's letter made clear that the IJ had discretion to grant or deny the motion. The IJ thus held that the in absentia order of removal was proper.
Denko timely filed a notice of appeal to the Board on August 29, 2000. Denko argued that the IJ's decision was an abuse of discretion because it relied on Wojnar's ambiguous letter to show that Denko was aware of the consequences of her failure to appear. According to Denko, because English is not her native tongue and because Wojnar's confusing letter negated the IJ's prior warnings, the motion to reopen should have been granted because Denko's failure to appear was the result of Wojnar's ineffectiveness as counsel. On June 5, 2002, the Board, using the newly enacted streamlining procedures, affirmed the IJ's order without issuing an opinion. Denko now seeks review in this court, where she challenges the BIA's affirmance of the IJ's order of removal and the BIA's use of the affirmance-without-opinion procedure.
Denko asserts that the IJ abused her discretion when she denied Denko's motion to reopen the order of removal. Denko argued in that motion, and argues here on appeal, that Wojnar's assistance was ineffective because Wojnar failed to make clear Denko's responsibility for appearing at the second hearing on April 7, 2000. In Denko's estimation, the IJ abused her discretion when she failed to give adequate weight to Denko's affidavit and supporting evidence that Denko was misinformed and would have reacted differently had she been given the proper information.
The denial of a motion to reopen or reconsider a removal order is reviewed for an abuse of discretion. INS v. Doherty, 502 U.S. 314, 324, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992). An abuse of discretion can be shown when the IJ or Board offers no "rational explanation, inexplicably depart[s] from established policies, or rest[s] on an impermissible basis...
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