Filed: Jul. 06, 2004
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 7-6-2004 Farmasheva v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 02-4331 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Farmasheva v. Atty Gen USA" (2004). 2004 Decisions. Paper 528. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/528 This decision is brought to you for free and open access by the Opin
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 7-6-2004 Farmasheva v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 02-4331 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Farmasheva v. Atty Gen USA" (2004). 2004 Decisions. Paper 528. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/528 This decision is brought to you for free and open access by the Opini..
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Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
7-6-2004
Farmasheva v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-4331
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation
"Farmasheva v. Atty Gen USA" (2004). 2004 Decisions. Paper 528.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/528
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 2004 Decisions by an authorized administrator of Villanova
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 02-4331, 03-4135
___________
RASSALYAT FARMASHEVA; FAHRIDDIN FARMASHEVA;
SAIDA FARMASHEVA
Petitioners
v.
JOHN ASHCROFT, Attorney General of the United States,
Respondent
___________
On Appeal from the Board of Immigration Appeals
(No. A76-019-415)
(No. A76-019-416)
(No. A76-019-417)
_____
Submitted Under Third Circuit LAR 34.1(a)
June 25, 2004
Before: NYGAARD, McKEE, and CHERTOFF, Circuit Judges.
(Filed: July 6, 2004)
___________
OPINION OF THE COURT
___________
NYGAARD, Circuit Judge.
Rassalyat Farmasheva, together with her children, filed this petition for review of
the Board of Immigration Appeal’s decision denying her request to reopen her
deportation proceeding or, alternatively, to remand her case to the Immigration Judge so
that she can apply for adjustment of status. We hold that the BIA did not err in denying
Farmasheva’s motions and will deny the petition for review.
I.
Because we write exclusively for the parties, we will review only those facts
pertinent to our analysis. Farmasheva, a native of Kazakhstan, entered the United States
with her two children on March 16, 1998. One year later, she left the United States and
entered Canada, where she applied for asylum and an employment-based Canadian visa.
The Canadian government denied her asylum application and she returned to the United
States. On July 14, 1999, having returned to the United States after the denial of her
Canadian asylum application, Farmasheva was placed in removal proceedings. She
conceded removability and applied for asylum. Farmasheva also requested that the
Immigration Judge grant her voluntary departure. She claims that she made this request
based on her Canadian attorney’s representation that her employment-based Canadian
visa would be approved prior to the date she would have to voluntarily depart the United
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States. Pursuant to this strategy, Farmasheva hoped to remain in the United States until
her Canadian visa was granted. The Immigration Judge granted Farmasheva’s request
and she was ordered to voluntarily depart the United States by July 14, 2000. Under the
terms of that order, if she did not depart by July 14, 2000, she would be removed to
Kazakhstan. That order was issued on December 16, 1999 and Farmasheva did not
directly appeal it.
Farmasheva did not voluntarily depart on July 14, 2000. Instead, on March 2,
2001, Farmasheva filed a motion to reopen her removal proceedings in an attempt to
resurrect her asylum application. On September 7, 2001, the Immigration Judge denied
this motion as untimely and Farmasheva appealed to the BIA. On October 31, 2002, the
BIA affirmed the Immigration Judge’s denial of Farmasheva’s motion to reopen. In that
opinion, the BIA did not address a motion to remand that Farmasheva had filed in
September 2002 while her appeal to the BIA was pending. Within that motion,
Farmasheva had requested that the BIA remand her case to the Immigration Judge so that
she could apply for adjustment of status based on an I-140 visa petition.
Farmasheva petitioned us to review the BIA’s October 31, 2002 order. While that
petition was pending, the appellee filed an unopposed motion to remand to the BIA so
that the BIA could, in the first instance, address Farmasheva’s motion to remand. We
granted that motion and, on September 29, 2003, the BIA denied Farmasheva’s motion to
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remand. She has now petitioned for review of both the September 29, 2003 and the
October 31, 2002 orders.
II.
We have jurisdiction over this petition under 8 U.S.C. § 1252(a)(1) and review the
BIA’s decision to deny a motion to reopen or a motion to remand for an abuse of
discretion. Savoian v. Ashcroft,
290 F.3d 166, 170 (3d Cir. 2002); see also 8 C.F.R. §
1003.2(c)(4) (treating a motion to reopen during the pendency of an appeal and a motion
to remand as identical); In re L-V-K, 22 I. & N. Dec. 976 (BIA 1999) (holding that a
motion to remand is the equivalent of a motion to reopen).
Farmasheva raises two issues on appeal: whether the BIA and Immigration Judge
erred in denying (1) her motion to reopen and (2) her motion to remand. With respect to
her motion to reopen, such motions “must be filed within 90 days of the date of entry of a
final administrative order of removal, deportation, or exclusion, or on or before
September 30, 1996, whichever is later.” 8 C.F.R. § 1003.23(b)(1). The Immigration
Judge ordered Farmasheva’s voluntary departure or, alternatively, her removal, on
December 16, 1999. Farmasheva did not file her motion to reopen this case until March
2, 2001, which was well beyond the 90-day period for filing such motions.
In an attempt to avoid the untimeliness of her motion to reopen, Farmasheva
argues that the 90-day period should be disregarded because her motion to reopen alleges
exceptional circumstances. Specifically, Farmasheva claims that she was the victim of
4
fraud at the hands of her Canadian representative and, absent that fraud, would not have
requested voluntary departure or withdrawn her application for asylum in 1999. We do
not dispute Farmasheva’s claim that she was victimized by the fraudulent conduct of her
representative; however, such fraud has no effect on the untimeliness of her motion to
reopen. As the BIA explained, the only arguably relevant exception to the 90-day filing
deadline is if an alien can show that the conditions in the country to which they are going
to be deported have changed and that evidence of such change was “not available and
could not have been discovered or presented at the previous proceeding.” 8 C.F.R. §
1003.23(b)(4)(I). Farmasheva has not presented any such evidence and, therefore, the
BIA was correct in holding that her motion to reopen was untimely.
The BIA was also correct in denying Farmasheva’s motion to remand. The BIA
relied on In re L-V-K to conclude that, like her motion to reopen, Farmasheva’s motion to
remand was untimely because it was filed more than 90 days after the entry of the final
administrative order. See In re L-V-K, 22 I. & N. Dec. at 976. The BIA’s reliance on In
re L-V-K was not an abuse of discretion and, therefore, we will deny the petition for
review as to Farmasheva’s motion to remand.
III.
For the foregoing reasons, we will deny Farmasheva’s petition for review.
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