Kanivets v. Gonzales, 03-3569.

Decision Date07 September 2005
Docket NumberNo. 03-3569.,No. 03-4187.,No. 04-3164.,03-3569.,03-4187.,04-3164.
Citation424 F.3d 330
PartiesOleg KANIVETS, Petitioner v. Alberto GONZALES, Attorney General of the United States, Respondent Oleg Kanivets, Appellee v. Bill Riley, as Regional Director Immigration and Customs Enforcement Department of Homeland Security, or his successor or Assigns; John Ashcroft, Attorney General of the United States, Appellant.
CourtU.S. Court of Appeals — Third Circuit

Lawrence H. Rudnick (Argued), Steel, Rudnick & Ruben, Philadelphia, PA, for Appellee Oleg Kanivets.

Greg D. Mack (Argued), Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, DC, for Appellant Bill Riley, as Regional Director Immigration and Customs Enforcement Department of Homeland Security, or His Successor or Assigns; John Ashcroft, Attorney General of the United States.

Before: SLOVITER, McKEE and WEIS, Circuit Judges.

OPINION

WEIS, Circuit Judge.

In this case the Board of Immigration Appeals denied a timely filed motion for rehearing on the ground that it was not decided until after the period for voluntary departure had elapsed. We conclude that the time allotted for departure is tolled pending a ruling on the motion and accordingly grant the petition for review.

Oleg Kanivets is a Russian Jew who is a citizen of Kyrgyzstan. He entered the United States on January 21, 1998 and was authorized to stay until January 20, 1999. He filed for asylum on August 2, 1999.

Kanivets contends that he suffered persecution in Kyrgyzstan based on his religion. He describes a pattern of threats and assaults that were ignored by the local police. In April 1997, Kanivets was assaulted by four Kyrgyz men who uttered an ethnic slur and threatened to kill him if he did not leave the country. He reported the assault to the police, but they told him that it was too minor an incident to investigate and advised him to leave for Israel if he was dissatisfied.

Kanivets alleged that the same four men assaulted him several months later and questioned why he had not gone to Israel. He suffered a concussion and was hospitalized for 20 days. Following that assault, Kanivets received several threatening phone calls from unidentified callers. His mother had previously received threatening notes after his sister moved to Israel in February 1997.

Kanivets testified that his supervisor and co-workers at the dental clinic where he worked harassed and threatened him. Discharged in May 1997, he alleged that he was denied further employment in Kyrgyzstan. Kanivets asserted that his family's apartment was ransacked after he departed for the United States. His mother reported the incident to the police, but they failed to investigate it. She entered the United States in April 1999.

The IJ denied Kanivets' application for asylum and withholding of removal, but granted a sixty-day period for voluntary departure. Holding that the application for asylum was untimely, the IJ's decision emphasized the lack of evidence to bolster Kanivets' claim of persecution. Based on this weakness in the petitioner's case, the IJ determined that Kanivets had failed to establish (1) that he qualified as a refugee, (2) that he was entitled to withholding of removal and (3) that he faced a clear probability of torture if he returned to Kyrgyzstan.

According to the IJ, "[t]he objective evidence in this case fails to show that Jewish people in Kyrgyzstan suffer persecution either at the hands of the government of that country, or by groups that the government of that country is unable or unwilling to control." He noted that Jews have been emigrating from Kyrgyzstan in steady numbers, but attributed this to "animosity of the Kyrgyz against the Russian-speaking community, which includes most Jews."

In contrast to the lack of objective evidence of anti-Semitism, the IJ noted that:

"Clearly, there had been instances of societal violence against those perceived as being "Russian" by the natives of Kyrgyzstan. . . .The problem of Russians who remain in the former Soviet republics is well-known. . . . [Kanivets] went from being part of a favored minority that controlled the country, namely, the Russians, to being part of a despised minority. The long pent-up resentment of the natives of Kyrgyzstan has taken its toll in the country. But there is no objective basis for the respondent's subjective claim that he has been the victim of persecution in Kyrgyzstan because of his Jewish ethnicity. The problem, if any, arose from the fact that he was perceived to be part of the former Russian masters . . . Arguably, the respondent may have been the victim of societal violence based upon the perception that he was a member of the Russian-speaking minority . . ."

The IJ concluded that "there is insufficient evidence in this record to show that the government of Kyrgyzstan condones or instigates persecution of those perceived to be Russians."

The IJ determined that Kanivets was removable as charged, denied the application for asylum and granted a sixty-day period for voluntary departure. The BIA affirmed on October 28, 2002 and provided an additional thirty-day period for voluntary departure.

On November 22, 2002, Kanivets filed timely motions to reopen the order of removal, for a stay of removal, and a remand for adjustment of status based on his alien worker certification and his employer's pending immigration petition. He also asked for a reinstatement of voluntary departure.

The BIA denied the motion to reopen on July 31, 2003, reasoning that petitioner was statutorily ineligible for adjustment of status because he had failed to depart the country before his period for voluntary departure had expired. On October 15, 2003, the Board denied the petitioner's motion for reconsideration. Kanivets petitioned for review in our Court on August 27, 2003 and October 23, 2003.

In the interim, on September 24, 2003, Kanivets filed a petition for habeas corpus in the United States District Court for Eastern District of Pennsylvania. That court granted relief and the government appealed.

The government (The Department of Homeland Security)1 appeals the District Court's order granting habeas corpus relief and remanding the case to the BIA because of asserted legal errors in the proceeding.

The government argues (1) that the District Court erred in weighing the sufficiency of the evidence, (2) that the IJ's ruling that the application for asylum was untimely is unreviewable, and (3) that the denial of asylum was not within the jurisdiction of the District Court.

During our consideration of the two petitions for review we learned that The Department of Homeland Security had appealed the District Court's habeas corpus order. We then consolidated all three matters and held oral argument.

After these appeals were taken, Congress enacted the "Real ID Act" amending 8 U.S.C. § 1252, Pub.L. No. 109-13, 119 Stat. 2331 (2005) signed into law May 11, 2005 and effective on that date. The Real ID Act, inter alia, shifted certain immigration disputes formerly raised through habeas corpus in the district courts to the courts of appeals and converted them into petitions for review. Subsection (a)(5) provides that "a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order of removal entered or issued under any provision of this chapter, except as provided in subsection (e) of this section."2

In the case before us, the petition for habeas corpus was filed at a time when the District Court had jurisdiction over the matter. Because it became effective on the date of enactment, the Real ID Act applies to this appeal. See Papageorgiou v. Gonzales, 413 F.3d 356 (3d Cir.2005). In Bonhometre v. Gonzales, 414 F.3d 442, 445-46 (3d Cir.2005), we noted that under the Real ID Act, cases pending in the district courts on the date of enactment were to be converted to petitions for review and transferred to the courts of appeals.

The Real ID Act, however, is silent as to habeas corpus petitions that were on appeal at the time of enactment. In resolving that procedural gap, we concluded that such appeals should be converted to petitions for review and retained by this Court. See id. at 445-46; see also Kamara v. Department of Homeland Security, 420 F.3d 202 (3d Cir.2005). Therefore, the current proceeding consists of three petitions for review.

One issue that is potentially dispositive is presented by two of the petitions, those originally complaining of the BIA's failure to rule on petitioner's request for reopening and the consequent failure to rule on the merits of his alien worker permit as a basis for adjustment of status.

After the BIA's original ruling, Kanivets had a statutory right to request a reopening of his case. See 8 U.S.C. § 1229a(c)(7); see also 8 C.F.R. § 1003.2(c). He did so on November 22, 2002, within the thirty-day period that the BIA had allotted for the privilege of voluntary departure. In his petition, Kanivets cited the fact that his employer had filed a pending immigrant petition for alien worker with the INS.

In denying the petition for rehearing, the BIA wrote, "[w]e find that the respondent is statutorily ineligible to apply for adjustment of status at the present time as a result of his failure to depart the United States prior to the expiration of his period of voluntary departure." The BIA cited 8 U.S.C. § 1229c(d) and Matter of Shaar, 21 I. & N. Dec. 541, 1996 WL 426889 (BIA 1996), aff'd 141 F.3d 953 (9th Cir.1998).

In Matter of Shaar, the BIA decided that the filing of a motion for reopening during the period of voluntary departure was not an "exceptional circumstance" that allows grant of discretionary relief. In denying Kanivets petition for reconsideration here, the BIA elaborated, ". . . an alien who fails to depart following a grant of voluntary departure, and...

To continue reading

Request your trial
13 cases
  • Chedad v. Gonzales
    • United States
    • U.S. Court of Appeals — First Circuit
    • July 31, 2007
    ...argument has prevailed in a number of circuits, see Ugokwe v. Attorney Gen., 453 F.3d 1325, 1331 (11th Cir.2006); Kanivets v. Gonzales, 424 F.3d 330, 335 (3d Cir.2005); Sidikhouya v. Gonzales, 407 F.3d 950, 952 (8th Cir.2005); Azarte, 394 F.3d at 1289, but has failed in others, see Dekolade......
  • Khouzam v. Attorney General of U.S.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • December 5, 2008
    ...and assigned INS's enforcement functions to the DHS's Bureau of Immigration and Customs Enforcement ("ICE"). See Kanivets v. Gonzales, 424 F.3d 330, 333 n. 1 (3d Cir.2005). The DHS Assistant Secretary for the ICE is the functional equivalent of the Commissioner of the now-defunct INS. See 8......
  • Dada v. Mukasey
    • United States
    • U.S. Supreme Court
    • June 16, 2008
    ...v. Gonzales, 459 F.3d 500 (C.A.4 2006). Four other Courts of Appeals have reached the opposite conclusion. See, e.g., Kanivets v. Gonzales, 424 F.3d 330 (C.A.3 2005); Sidikhouya v. Gonzales, 407 F.3d 950 (C.A.8 2005); Azarte v. Ashcroft, 394 F.3d 1278 (C.A.9 2005); Ugokwe v. United States A......
  • Obale v. Attorney General of the U.S., 05-1109.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • June 22, 2006
    ...authority to reinstate a voluntary departure period after it has expired. We considered the effect of Reynoso-Lopez in Kanivets v. Gonzales, 424 F.3d 330 (3d Cir.2005), where we noted its limited holding. In Kanivets, we held that the alien's timely motion to reopen tolled the voluntary dep......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT