Opinions of the United 2002 Decisions States Court of Appeals for the Third Circuit 6-14-2002 Tsymbalenko v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 01-3564 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2002 Recommended Citation "Tsymbalenko v. Atty Gen USA" (2002). 2002 Decisions. Paper 362. http://digitalcommons.law.villanova.edu/thirdcircuit_2002/362 This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2002 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.  NOT PRECEDENTIAL IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 01-3564 ___________________ YELENA TSYMBALENKO; ALEKSEY TSYMBALENKO, Petitioners v. JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES, Respondent ____________________________________ On Petition for Review of an Order of the Board of Immigration Appeals (Board No. A78726981) _______________________________________ Argued: April 26, 2002 Before: BECKER, Chief Judge, SCIRICA and RENDELL Circuit Judges. (Filed: June 14, 2002) TATIANA S. ARISTOVA, ESQUIRE (ARGUED) Law Offices of John J. Gallagher 1760 Market St., Suite 1100 Philadelphia, PA 19103 Counsel for Petitioners ROBERT D. McCALLUM, JR., ESQUIRE Assistant Attorney General Civil Division TERRI J. SCADRON, ESQUIRE Senior Litigation Counsel Office of Immigration Litigation WILLIAM C. MINICK, ESQUIRE (ARGUED) ETHAN B. KANTER, ESQUIRE LYLE D. JENTZER, ESQUIRE United States Department of Justice Civil Division Office of Immigration Litigation 1331 Pennsylvania Ave., NW, Suite 700S Washington, DC 20530 Transcribed by: Tracey J. Williams, CET (Proceedings recorded by electronic sound recording; transcript provided by AAERT-certified transcriber.) _______________________ BENCH OPINION _______________________ BECKER, Chief Judge. (The following is the bench opinion of the Court in the above-captioned matter:) THE HONORABLE JUDGE BECKER: I have conferred with the panel, and the panel, having studied this matter, grants the motion to dismiss the appeal for want of appellate jurisdiction. We are satisfied that the jurisdiction of this Court is squarely controlled by the plain text of Section 1249(a)(b)(5)(C), which provides that an in absentia removal order may be rescinded only upon a motion to reopen; we believe that we are also controlled by Marrero v. INS, 990 Fed.2d 772, Third Circuit, 1993, that a petition for review an in absentia deportation order is not proper where the alien had failed to file a motion to reopen the deportation order. Now, we are aware that one has now been filed, but that fact subsumes what is the animating spirit of both the statute and Marrero case, that the petitioner must exhaust administrative remedies; under these circumstances, petitioner has not exhausted them. And we have no idea what the Board will do: The Board may very well grant the motion to reopen, and this Court has made some remarks on the record that it has no objection if Ms. Aristova communicates to the Board. We are also satisfied that there would be no difference, given the clear, unequivocal proof of notice required for service, whatever the standard of review. We are, should we reach the merits, concerned about the sloppy manner in which the form was filled out by the Immigration Judge. At all events, we are satisfied that we lack  jurisdiction and, accordingly, the appeal will be dismissed. The Clerk will arrange for a transcript of this bench opinion, which will be a non-precedential opinion. Judge Scirica, anything to add or do you concur? THE HONORABLE JUDGE SCIRICA: I concur. JUDGE BECKER: Judge Rendell? THE HONORABLE JUDGE RENDELL: Yes, I concur as well. JUDGE BECKER: Thank you very much. (Bench opinion concluded.) _______________________________ TO THE CLERK: Please file the foregoing Bench Opinion. BY THE COURT: /s/ Edward R. Becker Chief Judge