Harchenko v. I.N.S., No. 02-3971.

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtGibbons
Citation379 F.3d 405
Decision Date30 July 2004
Docket NumberNo. 02-3971.
PartiesYuri HARCHENKO, Oleksandr Harchenko, and Tetiana Harchenko, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE; John Ashcroft, Attorney General, Respondents.
379 F.3d 405
Yuri HARCHENKO, Oleksandr Harchenko, and Tetiana Harchenko, Petitioners,
v.
IMMIGRATION AND NATURALIZATION SERVICE; John Ashcroft, Attorney General, Respondents.
No. 02-3971.
United States Court of Appeals, Sixth Circuit.
Submitted June 9, 2004.
Decided and Filed July 30, 2004.

Page 406

Richard T. Herman (briefed), Cleveland, OH, for Petitioners.

Audrey B. Hemesath (briefed), Office of Immigration Litigation, U.S. Department of Justice, Washington, DC, for Respondent Immigration and Naturalization Service.

Before: SILER and GIBBONS, Circuit Judges; REEVES, District Judge.*

Page 407

OPINION

GIBBONS, Circuit Judge.


Petitioner Yuri Harchenko appeals from the decision of the Board of Immigration Appeals ("BIA") denying his emergency motion to reopen, or in the alternative, to reinstate voluntary departure. Harchenko's initial petition for asylum was denied after a hearing on the merits on August 19, 1997. The Immigration Judge ("IJ") granted voluntary departure and Harchenko appealed the denial of his application for asylum to the BIA. The BIA dismissed his appeal and this court affirmed, finding that the BIA's denial of asylum and withholding of deportation was supported by substantial evidence in the administrative record. Prior to the issuance of this court's opinion in Harchenko's first appeal, he filed a motion to reopen based on an approved labor certification and "deteriorating human rights conditions in the Ukraine," and, in the alternative, requested reinstatement of the voluntary departure period. The BIA found that the motion to reopen was untimely and declined to exercise its sua sponte authority to reopen the proceedings pursuant to 8 C.F.R. § 3.2(a). The BIA also concluded that it lacked the authority to reinstate the period of voluntary departure because it was denying the motion to reopen. For the following reasons, the petition for review of the decision of the BIA is denied.

I.

Harchenko and his family are natives and citizens of the Ukraine. They arrived in the United States in October 1994, with a B-2 visitor visa that allowed them to stay until April 20, 1995. On December 9, 1994, Harchenko filed a petition for asylum that included derivative petitions for his wife, Dr. Tetiana Harchenko, and son, Oleksandr. On March 12, 1996, the Immigration and Naturalization Service ("INS") issued an Order to Show Cause, charging Harchenko with deportability for remaining in the United States for a time longer than permitted.

Harchenko's petition for asylum was denied initially on August 19, 1997. The IJ noted that she had "some problems with [Harchenko's] credibility" because his administratively-filed application alleged a fear of persecution on the basis of his Jewish ethnicity, while his supplemental application emphasized the likelihood that he would be threatened by criminals if he returned to the Ukraine. The IJ nonetheless assumed Harchenko's claims were credible and concluded that he had failed to establish a likelihood of present or future persecution in the Ukraine based upon his identity as a member of the Jewish faith, or as a Jewish national. An order was entered denying Harchenko's applications for asylum and the withholding of deportation and granting voluntary departure. The order noted that "if the [r]espondents fail to depart when and as required, the privilege of voluntary departure shall be withdrawn without further notice or proceedings and the following order shall become immediately effective: [r]espondents shall be deported from the United States to the Ukraine on the charges contained in the Orders to Show Cause."

Although Harchenko filed a timely notice of appeal with the BIA, his brief was not submitted on time and the BIA declined to grant an extension. Harchenko v. INS, 22 Fed.Appx. 540, 542 (6th Cir.2001) (Harchenko I). The BIA later denied his motion to consider his untimely brief and affirmed the IJ's decision. Id. at 541. The BIA also reiterated the IJ's earlier grant of voluntary departure: "[T]he respondents are permitted to depart from the United States voluntarily within 30 days from the date of this order or any

Page 408

extension beyond that time as may be granted by the district director; and in the event of failure to so depart, the respondents shall be deported as provided in the [original] order." This court affirmed the BIA's decision on November 9, 2001. Id.

Between the IJ's initial ruling and the BIA's decision to affirm, Harchenko filed a Form I-140 application for labor certification as a Licensed Physical Nurse at Broadview Multi-Care facility in Parma, Ohio. This application was approved by the INS on October 18, 2000. In light of the approved labor certification, the Harchenkos argued to the INS that they were eligible for an adjustment in status to permanent residents upon the reopening of their deportation proceedings. However, the INS advised them that they were barred from seeking an adjustment of status for five years pursuant to § 242B(e) of the Immigration and Naturalization Act ("INA"), 8 U.S.C. § 1252b (1996), due to their failure to leave the United States following the issuance of the BIA's May 2000 decision granting voluntary departure.

On October 30, 2001, the Harchenkos filed an emergency motion to reopen and, in the alternative, to request reinstatement of voluntary departure. The BIA concluded that the motion to reopen was untimely and rejected Harchenko's argument that a final order of deportation did not exist until the period of voluntary departure had expired. Harchenko had argued that the period of voluntary departure was tolled while he pursued an appeal of the BIA's decision affirming the denial of his application for asylum, but the BIA noted that the regulatory deadline for the filing of a motion to reopen runs from the date the IJ enters an order of deportation, and not from the date the voluntary departure period expires. In the alternative, Harchenko had argued that the BIA should exercise its sua sponte authority to reopen the proceedings due to exceptional circumstances, but the BIA concluded that Harchenko's desire to seek an adjustment of status was not an exceptional situation warranting reopening. Harchenko also requested reopening on the basis of changed circumstances arising in the Ukraine, but the BIA found that he had not demonstrated such a "reasonable likelihood of success on the merits so as to make it worthwhile to develop the issues further at a full evidentiary hearing." Finally, the BIA denied Harchenko's request that it reinstate the period of voluntary departure, finding that it lacked the authority to do so because it was denying his motion to reopen. He now appeals from the order denying his motion to reopen and request for voluntary departure.

II.

This court's jurisdiction to review the BIA's denial of a motion to reopen deportation proceedings was altered by adoption of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009. Prior to 1996, parties who wished to appeal any decision of the BIA filed a petition for review in the court of appeals for the circuit in which the administrative proceedings had been held. INA § 106(a) (formerly codified at 8 U.S.C. § 1105(a)). Section 106 was repealed by the IIRIRA and replaced with a new judicial review provision codified at 8 U.S.C. § 1252, but the repeal applies only to immigration proceedings begun after April 1, 1997. IIRIRA § § 306(c), 309(a) & (c). The IIRIRA specifically provides for the application of transitional rules in cases in which deportation proceedings were pending before April 1, 1997, and a final deportation order was filed after October 30, 1996. IIRIRA § 309(c)(4). Because the BIA issued its

Page 409

decision on July 31, 2002, and petitioners were placed in proceedings before April 1, 1997, this case is governed by former § 106 of the INA, as amended by the IIRIRA's transitional rules.

III.

Although Harchenko asserts eight issues in his brief,1 he is in essence arguing just two points: (1) the BIA abused its discretion in denying his motion to reopen, and (2) if this court affirms the denial of his motion to reopen, it should nevertheless reinstate his earlier grant of voluntary departure.

A. Motion to Reopen

Harchenko first challenges the BIA's denial of his motion to reopen. He argues that the BIA erred in concluding that his motion to reopen was untimely, in deciding that he had failed to demonstrate changed country conditions in the Ukraine, in declining to exercise its sua sponte authority to reopen proceedings, and in finding that it lacked the authority to reinstate voluntary departure. This court reviews the BIA's denial of a motion to reopen for an abuse of discretion. INS v. Doherty, 502 U.S. 314, 323-24, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992). Legal issues are reviewed de novo. See Mikhailevitch v. INS, 146 F.3d 384, 391 (6th Cir.1998).

Under the rules in effect at the time the Harchenkos filed their asylum petition, a motion to reopen in any case previously the subject of a final decision by the BIA had to be filed no later than 90 days after the date of the BIA's decision. See 8 C.F.R. § 3.2(c)(2). However, the 90-day filing deadline does not apply to motions to reopen (1) filed by aliens who are deported in absentia; (2) filed by aliens seeking asylum or withholding of deportation based on changed country...

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85 practice notes
  • Zetino v. Holder, No. 08-70390.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 18, 2010
    ...193 Fed.Appx. 245, 246 (4th Cir.2006) (per curiam); Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 248-50 (5th Cir.2004); Harchenko v. INS, 379 F.3d 405, 410-11 (6th Cir.2004); Pilch v. Ashcroft, 353 F.3d 585, 586 (7th Cir. 2003); Ekimian, 303 F.3d at 1159; Belay-Gebru v. INS, 327 F.3d 998, 1......
  • Tamenut v. Mukasey, No. 05-4418.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • March 11, 2008
    ...Fed.Appx. 245, 246 (4th Cir. 2006) (per curiam); Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 248-50 (5th Cir. 2004); Harchenko v. INS, 379 F.3d 405, 410-11 (6th Cir.2004); Pilch v. Ashcroft, 353 F.3d 585, 586 (7th Cir.2003); Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir.2002); Belay-Gebru v......
  • Gor v. Holder, No. 08-3859.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • June 4, 2010
    ...where the basis of the motion is fraud in the original proceeding or a crime that would support termination of asylum.” Harchenko v. INS, 379 F.3d 405, 409 (6th Cir.2004) (citing 8 C.F.R. §§ 1003.2(c)(3)(i)-(iv)). None of those exceptions applies here.607 F.3d 185 The alien's third option f......
  • Mapouya v. Gonzales, No. 06-3042.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • May 18, 2007
    ...showing a real threat of individual persecution.'" Mateo v. Gonzales, 217 Fed.Appx. 476, 484 (6th Cir.2007) (citing Harchenko v. INS, 379 F.3d 405, 410 (6th Cir.2004) (citations If past persecution raises the rebuttable presumption, the government "may rebut that presumption by showing that......
  • Request a trial to view additional results
85 cases
  • Zetino v. Holder, No. 08-70390.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 18, 2010
    ...193 Fed.Appx. 245, 246 (4th Cir.2006) (per curiam); Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 248-50 (5th Cir.2004); Harchenko v. INS, 379 F.3d 405, 410-11 (6th Cir.2004); Pilch v. Ashcroft, 353 F.3d 585, 586 (7th Cir. 2003); Ekimian, 303 F.3d at 1159; Belay-Gebru v. INS, 327 F.3d 998, 1......
  • Tamenut v. Mukasey, No. 05-4418.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • March 11, 2008
    ...Fed.Appx. 245, 246 (4th Cir. 2006) (per curiam); Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 248-50 (5th Cir. 2004); Harchenko v. INS, 379 F.3d 405, 410-11 (6th Cir.2004); Pilch v. Ashcroft, 353 F.3d 585, 586 (7th Cir.2003); Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir.2002); Belay-Gebru v......
  • Gor v. Holder, No. 08-3859.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • June 4, 2010
    ...where the basis of the motion is fraud in the original proceeding or a crime that would support termination of asylum.” Harchenko v. INS, 379 F.3d 405, 409 (6th Cir.2004) (citing 8 C.F.R. §§ 1003.2(c)(3)(i)-(iv)). None of those exceptions applies here.607 F.3d 185 The alien's third option f......
  • Mapouya v. Gonzales, No. 06-3042.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • May 18, 2007
    ...showing a real threat of individual persecution.'" Mateo v. Gonzales, 217 Fed.Appx. 476, 484 (6th Cir.2007) (citing Harchenko v. INS, 379 F.3d 405, 410 (6th Cir.2004) (citations If past persecution raises the rebuttable presumption, the government "may rebut that presumption by showing that......
  • Request a trial to view additional results

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