11-1843-ag
Bandarovich v. Holder
                                                                                BIA
                                                                        A089 253 341
                        UNITED STATES COURT OF APPEALS
                            FOR THE SECOND CIRCUIT

                              SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING
A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”).
A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.

     At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 2nd day of July, two thousand twelve.

PRESENT:
         ROBERT A. KATZMANN,
         REENA RAGGI,
         RAYMOND J. LOHIER, JR.,
              Circuit Judges.
_______________________________________

ANDREI BANDAROVICH,
         Petitioner,

                    v.                                  11-1843-ag
                                                        NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
         Respondent.
_______________________________________

FOR PETITIONER:              H. Raymond Fasano, New York, New York.

FOR RESPONDENT:              Tony West, Assistant Attorney General; M.
                             Jocelyn Lopez Wright, Senior Litigation
                             Counsel; Anna Nelson, Trial Attorney,
                             Office of Immigration Litigation, United
                             States Department of Justice, Washington,
                             D.C.
    UPON DUE CONSIDERATION of this petition for review of a

decision of the Board of Immigration Appeals (“BIA”), it is

hereby ORDERED, ADJUDGED, AND DECREED that the petition for

review is DENIED.

    Andrei Bandarovich, a native of the former Soviet Union

and citizen of Belarus, challenges the April 6, 2011

decision of the BIA denying his motion to reopen, In re

Andrei Bandarovich, No. A089 253 341 (B.I.A. Apr. 6, 2011),

a decision we review for abuse of discretion, see Ali v.

Gonzales, 

, 517 (2d Cir. 2006).     We assume the

parties’ familiarity with the facts and record of prior

proceedings, which we reference only as necessary to explain

our decision to deny the petition for review.

    Bandarovich does not dispute the BIA’s conclusion that,

because he filed his motion after his voluntary departure

period expired, he cannot unilaterally withdraw his request

for voluntary departure under Dada v. Mukasey, 

,

21 (2008) (holding that alien “must be permitted to

withdraw, unilaterally, a voluntary departure request before

expiration of the departure period” (emphasis added)); see 8

C.F.R. § 1240.26.   Rather, Bandarovich contends reopening is

necessary because the immigration judge (“IJ”) did not



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explain the consequences of a failure to abide by the

voluntary departure order and therefore violated his due

process rights.

    The record is to the contrary.   The IJ specifically

enumerated to Bandarovich and his wife the consequences of

the voluntary departure order, advising them that failure to

depart within the time specified would result in a removal

order and ineligibility to receive certain benefits,

including adjustment of status.   The IJ further offered

Bandarovich and his wife a moment to discuss the applicable

consequences with counsel before rendering the decision,

which Bandarovich, through counsel, declined.1   Finally, the

written order of the IJ and the BIA’s 2010 decision,

documents which Bandarovich does not dispute receiving, both

discuss the consequences of any failure to abide by the

voluntary departure order.   See 8 U.S.C. § 1229c(d).   Under

these circumstances, the BIA did not abuse its discretion in

rejecting Bandarovich’s bare assertions that he did not

knowingly, intelligently, or voluntarily agree to entry of

the order.   See Burger v. Gonzales, 

, 134 (2d



      1
        On appeal, Bandarovich has expressly disclaimed any
  claim of ineffective assistance of counsel.
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Cir. 2007) (“To establish a violation of due process, an

alien must show that she was denied a full and fair

opportunity to present her claims or that the IJ or BIA

otherwise deprived her of fundamental fairness” (internal

quotation marks omitted)).

    For the foregoing reasons, the petition for review is

DENIED.   As we have completed our review, any stay of

removal that the Court previously granted in this petition

is VACATED, and any pending motion for a stay of removal in

this petition is DISMISSED as moot.

                             FOR THE COURT:
                             Catherine O’Hagan Wolfe, Clerk




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