Filed: Dec. 04, 2017
Latest Update: Mar. 03, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 17-1175 _ ROMAN MOLDAVCHUK, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, Respondent _ Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A096-109-377) Immigration Judge: Honorable Charles M. Honeyman _ Submitted Under Third Circuit L.A.R. 34.1(a) October 2, 2017 _ Before: SHWARTZ and ROTH, Circuit Judges, and PAPPERT,* District Judge. (Opinion Filed: December 4, 2017) _ OPI
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 17-1175 _ ROMAN MOLDAVCHUK, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, Respondent _ Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A096-109-377) Immigration Judge: Honorable Charles M. Honeyman _ Submitted Under Third Circuit L.A.R. 34.1(a) October 2, 2017 _ Before: SHWARTZ and ROTH, Circuit Judges, and PAPPERT,* District Judge. (Opinion Filed: December 4, 2017) _ OPIN..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 17-1175
______________
ROMAN MOLDAVCHUK,
Petitioner
v.
ATTORNEY GENERAL OF THE
UNITED STATES OF AMERICA,
Respondent
______________
Petition for Review of an Order of
the Board of Immigration Appeals
(Agency No. A096-109-377)
Immigration Judge: Honorable Charles M. Honeyman
______________
Submitted Under Third Circuit L.A.R. 34.1(a)
October 2, 2017
______________
Before: SHWARTZ and ROTH, Circuit Judges, and PAPPERT,* District Judge.
(Opinion Filed: December 4, 2017)
______________
OPINION**
______________
*
Honorable Gerald J. Pappert, United States District Judge for the Eastern District
of Pennsylvania, sitting by designation.
**
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
SHWARTZ, Circuit Judge.
Roman Moldavchuk petitions for review of a decision of the Board of Immigration
Appeals (“BIA”) denying his motion to reopen. Because the BIA correctly concluded
that Moldavchuk’s motion was untimely and not subject to equitable tolling and because
we lack jurisdiction to review his argument that the BIA should have sua sponte reopened
his removal proceedings, we will deny the petition in part and dismiss it in part.
I
Moldavchuk is a native and citizen of Ukraine. In November 1997, he was
admitted to the United States as a visitor for a period not to exceed six months but stayed
beyond the six-month period without authorization. In July 2004, Moldavchuk was
served with a notice to appear, charging him with removability under 8 U.S.C. §
1227(a)(1)(B) as an alien who remained in the United States longer than permitted.
In October 2004, Moldavchuk appeared before an Immigration Judge (“IJ”) with
counsel Andre Michniak and conceded the charges in the notice to appear. He indicated
that he would be seeking to adjust his status to become a permanent resident and that he
had filed a labor certification sponsored by a U.S.-based roofing company, which stated
that it would hire Moldavchuk because of his skill as a copper sheet metal mechanic and
that there were insufficient U.S. workers to fulfill its needs. Between October 2004 and
February 2008, the proceedings before the IJ were continued several times to allow both
this and a second labor certification sponsored by a different roofing company to be
processed. In February 2008, Moldavchuk appeared before the IJ, by which point his
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second labor certification had been approved,1 and he stated that he would be filing a
Form I-140 employment-based visa petition based on the labor certification. Between
February 2008 and September 2009, the IJ provided Moldavchuk additional continuances
to file the visa petitions, which were subsequently denied.
In September 2009, Moldavchuk appeared before the IJ and sought his seventh
continuance of the proceedings to allow him to again attempt to adjust his status. This
time he sought adjustment based upon his relationship with Hanna Oros, a lawful
permanent resident and a naturalization applicant with whom he had a two-year-old U.S.
citizen child. Moldavchuk stated that they intended to marry but had not set a date for the
wedding because Oros was attending school and her financial aid was contingent on her
being unmarried. The IJ denied his motion because Moldavchuk: (1) had received many
continuances over the course of five years; (2) produced no supporting documentation
regarding his relationship with Oros, her naturalization application, or his parentage of
the child; and (3) had set no specific date to marry Oros. In addition, Moldavchuk’s
Form I-140 visa petition had been denied twice, and he had no employment-based visa
petition pending. The IJ concluded that Moldavchuk’s future eligibility for adjustment of
status was speculative and that he had failed to show good cause for another continuance.
The IJ then ordered Moldavchuk removed to Ukraine.
Moldavchuk appealed to the BIA. However, in January 2010, Michniak withdrew
as counsel because Moldavchuk failed to pay his legal fees. Moldavchuk proceeded pro
1
Moldavchuk’s first labor certification was apparently never approved.
3
se before the BIA and did not file a brief in support of his appeal. In April 2011, the BIA
dismissed the appeal, agreeing with the IJ’s conclusion that Moldavchuk’s eligibility for
adjustment of status was too speculative.
Meanwhile, in December 2009, Moldavchuk married Oros, and they hired
attorney James Orlow to represent them in filing a Form I-130 family-based visa petition
and a Form I-485 application for adjustment of status. Orlow entered an appearance with
the Department of Homeland Security (“DHS”) and indicated that his appearance was in
regard to “I-130/All Immigration Matters” before the United States Citizenship and
Immigration Services (“USCIS”). A.R. 143. In January 2010, Orlow filed a Form I-130
petition with the DHS on behalf of Moldavchuk that was sponsored by Oros. However,
Moldavchuk and Oros’s relationship subsequently became acrimonious, and Orlow
informed Moldavchuk that he could no longer represent them due to their conflict. In
March 2011, Oros withdrew the Form I-130 visa petition. Around this time, Moldavchuk
consulted with a different attorney, who told Moldavchuk that nothing could be done
about his immigration case. In the summer of 2012, Moldavchuk consulted with another
attorney, who also told him that nothing could be done about his case. In November
2012, Moldavchuk and Oros divorced.
In May 2016, Moldavchuk married Zoya Barmashenko, a U.S. citizen, and they
subsequently filed a Form I-130 visa petition through their current attorney. In August
2016, Moldavchuk sent Orlow a proposed disciplinary complaint, complaining that
Orlow should have moved to remand his case from the BIA to the IJ based on the Form I-
130 visa petition he filed on behalf of Moldavchuk and Oros. Moldavchuk stated that,
4
had Orlow filed a motion to remand, he would have been able to properly file a Form I-
485 application for adjustment of status with the IJ and would have been able to seek
administrative closure of his case based on the fact that he had a U.S. citizen child and no
criminal record. Moldavchuk asserts that because Orlow did not file such a motion, the
BIA instead dismissed his case and ordered him removed. Orlow responded to the
complaint and stated that he would not have been able to make any application with the
court until the Form I-130 was approved. Moldavchuk sent the complaint to the
Disciplinary Board of the Supreme Court of Pennsylvania, but the complaint was
dismissed as untimely.
In September 2016, Moldavchuk filed a motion to reopen with the BIA.
Moldavchuk argued that his case should be reopened because Orlow was ineffective in
failing to file a motion to remand with the BIA. He further argued that, absent Orlow’s
errors, he could have sought the favorable exercise of prosecutorial discretion and that,
contrary to Orlow’s belief, Orlow could have moved to remand his case before the Form
I-130 petition was approved. In the alternative, Moldavchuk requested that the BIA sua
sponte reopen his case because it presented exceptional circumstances.
The BIA denied Moldavchuk’s motion to reopen. The BIA concluded that: (1) the
motion was untimely; (2) Moldavchuk did not qualify for equitable tolling of the deadline
based on his ineffective assistance of counsel claim because he did not show that he
exercised due diligence in pursuing such a claim; (3) even if equitable tolling applied, the
evidence did not show the deadline would have been tolled throughout the entire period
to result in the motion to reopen being deemed timely; (4) Moldavchuk did not show that
5
the scope of Orlow’s representation covered proceedings before the IJ or BIA; (5) given
that Oros withdrew the Form I-130 visa petition she sponsored on Moldavchuk’s behalf,
there was no pending visa petition that could have served as a basis for remand and, even
if the case were remanded, there would have been no basis to grant him adjustment of
status; (6) in the absence of a pending visa petition, Moldavchuk cannot show that there
is a reasonable likelihood he would have been granted administrative closure; (7) the
possibility that Moldavchuk could have been granted prosecutorial discretion is a matter
within the authority of the DHS, not the IJ or BIA, and hence any requests for
prosecutorial discretion presented to them would have been misdirected; and (8)
Moldavchuk’s case did not present an exceptional situation that would warrant the BIA’s
exercise of discretion to reopen his case sua sponte. Moldavchuk petitions for review.
II
A
The BIA had jurisdiction to consider Moldavchuk’s motion to reopen under 8
C.F.R. § 1003.2(a) and (c). We have jurisdiction to review the BIA’s decision under 8
U.S.C. § 1252 and review the denial of a motion to reopen for abuse of discretion. Filja
v. Gonzales, 447 F.3d 241, 251 (3d Cir. 2006). Under the abuse of discretion standard,
we will reverse the BIA’s decision only if it is arbitrary, irrational, or contrary to law.
Id.
We review the factual findings related to the motion for substantial evidence.
Id. Under
the substantial evidence standard, factual findings are “conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.” Borges v. Gonzales,
402
F.3d 398, 404 (3d Cir. 2005) (quoting 8 U.S.C. § 1252(b)(4)(B)) (internal quotation
6
marks omitted). We apply de novo review to questions of law, including whether
Moldavchuk received ineffective assistance of counsel. Fadiga v. Att’y Gen., 488 F.3d
142, 153–54 (3d Cir. 2007).
B
A motion to reopen removal proceedings “must be filed no later than 90 days after
the date on which the final administrative decision was rendered.” 8 C.F.R.
§ 1003.2(c)(2). Here, the BIA rendered its final decision in April 2011, but Moldavchuk
did not file his motion to reopen until over five years later in September 2016.
Accordingly, Moldavchuk’s motion is untimely unless he can show that the time period
should be equitably tolled. Alzaarir v. Att’y Gen., 639 F.3d 86, 90 (3d Cir. 2011) (per
curiam).
Ineffective assistance of counsel may provide a basis for equitable tolling. Id. To
establish an ineffective assistance of counsel claim, an alien must show that (1) counsel’s
performance was deficient, such that “competent counsel would have acted otherwise”
and (2) counsel’s poor performance resulted in prejudice.
Fadiga, 488 F.3d at 157
(internal quotation marks omitted). To prove prejudice, an alien must show a reasonable
likelihood that, absent counsel’s errors, the result of the removal proceeding would have
been different.
Id. at 158-59.2 However, even where an alien establishes an ineffective
2
In addition to the substantive requirements for proving ineffective assistance of
counsel, an alien must also satisfy certain procedural requirements. See In re Lozada, 19
I. & N. Dec. 637, 639 (BIA 1988) (requiring that, in pursuing a motion to reopen based
upon ineffective assistance of counsel, an alien must (1) provide an affidavit in which the
alien attests to the relevant facts, (2) inform former counsel of the allegations and give
counsel the opportunity to respond, and (3) indicate whether a complaint has been filed
7
assistance of counsel claim, that claim may not serve as a basis for equitable tolling
unless the alien acted with due diligence during the entire period for which equitable
tolling is sought. Alzaarir, 639 F.3d at 90.
Moldavchuk is not entitled to equitable tolling based on his claim that Orlow was
ineffective in failing to file a motion to remand with the BIA. First, the record does not
show that Moldavchuk acted with due diligence. Moldavchuk consulted with an attorney
in 2012 but did not make another filing in the immigration proceedings until 2016. This
four-year gap in time alone provides substantial support for the BIA’s conclusion that
Moldavchuk did not act with diligence. Moreover, the record contains no evidence
regarding what actions Moldavchuk took during these four years, and therefore we have
no basis to reach a conclusion contrary to that reached by the BIA.
Second, the record supports the conclusion that Orlow’s performance was not
deficient. Orlow entered an appearance with DHS, specifically indicating that he would
be representing Moldavchuk in filing a Form I-130 and other immigration matters before
the USCIS. Orlow did not enter an appearance before the IJ or BIA. Indeed, the record
shows that Michniak represented Moldavchuk before the IJ and BIA. Therefore, the
record does not show Orlow was responsible for representing Moldavchuk before the
BIA, and thus he could not have been deficient in failing to file a motion to remand with
the BIA when such an action was outside the scope of his representation. While
against counsel with the appropriate disciplinary authorities); see also Xu Yong Lu v.
Ashcroft, 259 F.3d 127, 133 (3d Cir. 2001) (holding that the BIA’s creation of the
Lozada requirements was valid and within its discretion). The Government does not
challenge that Moldavchuk substantially complied with these requirements.
8
Moldavchuk stated that he “believed” Orlow would take any action necessary to ensure
his status was adjusted, including making filings with the BIA, there is no evidence in the
record to substantiate that belief. A.R. 45.
Finally, Moldavchuk was not prejudiced by Orlow’s failure to file a motion to
remand, as there is no indication that the result of the removal proceedings would have
been different even if Orlow filed a motion to remand and the motion was granted.
Because Oros withdrew the Form I-130 visa petition filed on Moldavchuk’s behalf, there
was no longer a pending visa petition that could have rendered Moldavchuk eligible for
adjustment of status on remand. Seemingly realizing this fact, Moldavchuk argues
instead that he would have been eligible to seek (1) administrative closure of his case
based on the fact that he had a U.S. citizen child who could have sponsored a visa
petition on his behalf once she turned twenty one, or (2) the favorable exercise of
prosecutorial discretion. At the time of the BIA’s final decision in April 2011,
Moldavchuk’s child was approximately four years old. We cannot conclude that the BIA
erred in determining that there was not a “reasonable likelihood” that Moldavchuk’s case
would have been administratively closed, A.R. 4, because it is highly unlikely that the IJ
would have granted an administrative closure of Moldavchuk’s case for a period of
seventeen years based on the possibility that his child would file a visa petition on his
behalf when she turned twenty one. See In re Avetisyan, 25 I. & N. Dec. 688, 696 (BIA
2012) (explaining that, in evaluating a request for administrative closure, the IJ or BIA
consider, among other things, the anticipated duration of the closure); see also Gonzalez-
Vega v. Lynch, 839 F.3d 738, 741 (8th Cir. 2016) (concluding that the IJ did not abuse its
9
discretion in denying the alien’s request for administrative closure based on the theory
that his infant son could ultimately sponsor a visa petition on his behalf, and explaining
that the anticipated two-decade closure period “weighed heavily against closure” and that
“[t]he possibility of a successful visa petition was too remote”). With respect to the issue
of prosecutorial discretion, Orlow’s failure to file a motion to remand did not in any way
prejudice Moldavchuk’s ability to seek prosecutorial discretion. The authority to exercise
prosecutorial discretion is committed exclusively to the DHS, and an alien may request
prosecutorial discretion from the DHS at any stage of removal proceedings. In re
Quintero, 18 I. & N. Dec. 348, 350 (BIA 1982); see also 8 U.S.C. § 1103(a)(1) (noting
that the Secretary of Homeland Security is “charged with the administration and
enforcement of this chapter and all other laws relating to the immigration and
naturalization of aliens”); Matter of Ramirez-Sanchez, 17 & N. Dec. 503, 504 (BIA
1980) (“The decision to institute deportation proceedings involves the exercise of
prosecutorial discretion and is one which neither the [IJ] nor this Board reviews.”).
Accordingly, Orlow’s failure to move to remand Moldavchuk’s case to the IJ had no
impact on Moldavchuk’s ability to request prosecutorial discretion from the DHS.
Therefore, Moldavchuk has failed to identify any way in which he was prejudiced by
Orlow’s failure to file a motion to remand.
For these reasons, we conclude that Moldavchuk’s motion was untimely, and there
was no ineffective assistance of counsel that tolled the deadline. We will therefore deny
the petition for review of the BIA’s decision denying Moldavchuk’s motion to reopen.
C
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Moldavchuk also argues that the BIA abused its discretion in declining to sua
sponte reopen his proceedings under 8 C.F.R. § 1003.2(a). However, the BIA’s decision
to decline sua sponte reopen proceedings is “committed to its unfettered discretion” and
is virtually immune from judicial review. Calle-Vujiles v. Ashcroft, 320 F.3d 472, 474
(3d Cir. 2003) (internal quotation marks omitted). There are only two grounds that allow
us to review such a discretionary decision and neither applies here.3 Accordingly, we
lack jurisdiction to review the BIA’s decision to deny his request to sua sponte reopen his
case.
III
For the foregoing reasons, we will deny Moldavchuk’s petition for review in part
and dismiss it in part.
3
We have limited authority to act when asked to review the denial of a request for
sua sponte reopening in two situations. See Pllumi v. Att’y Gen., 642 F.3d 155, 160 (3d
Cir. 2011) (permitting remand where the BIA’s decision to deny sua sponte reopening is
predicated on a “false legal premise”);
Calle-Vujiles, 320 F.3d at 475 (permitting review
where the agency is acting “by rule or by settled course of adjudication” which indicates
that “a general policy” is governing its exercise of discretion (internal quotation marks
omitted)).
11
