Filed: Aug. 19, 2009
Latest Update: Mar. 02, 2020
Summary: RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 09a0296p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _ X Petitioners, - ALEKSANDER STOLAJ; DIELLA STOLAJ, - - - No. 08-3858 v. , > - Respondent. - ERIC H. HOLDER, JR., Attorney General, - N On Petition for Review of an Order of the Board of Immigration Appeals. Nos. A73 624 851; A73 624 852. Argued: August 4, 2009 Decided and Filed: August 19, 2009 * Before: MOORE and ROGERS, Circuit Judges; THAPAR, D
Summary: RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 09a0296p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _ X Petitioners, - ALEKSANDER STOLAJ; DIELLA STOLAJ, - - - No. 08-3858 v. , > - Respondent. - ERIC H. HOLDER, JR., Attorney General, - N On Petition for Review of an Order of the Board of Immigration Appeals. Nos. A73 624 851; A73 624 852. Argued: August 4, 2009 Decided and Filed: August 19, 2009 * Before: MOORE and ROGERS, Circuit Judges; THAPAR, Di..
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0296p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
Petitioners, -
ALEKSANDER STOLAJ; DIELLA STOLAJ,
-
-
-
No. 08-3858
v.
,
>
-
Respondent. -
ERIC H. HOLDER, JR., Attorney General,
-
N
On Petition for Review of an Order
of the Board of Immigration Appeals.
Nos. A73 624 851; A73 624 852.
Argued: August 4, 2009
Decided and Filed: August 19, 2009
*
Before: MOORE and ROGERS, Circuit Judges; THAPAR, District Judge.
_________________
COUNSEL
ARGUED: Andrea J. Ferrara, LAW OFFICES OF ANDREA J. FERRARA,
Eastpointe, Michigan, for Petitioners. James E. Grimes, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF:
Andrea J. Ferrara, LAW OFFICES OF ANDREA J. FERRARA, Eastpointe, Michigan,
for Petitioners. James E. Grimes, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
ROGERS, J., delivered the opinion of the court, in which THAPAR, D. J., joined.
MOORE, J. (pp. 14-15), delivered a separate opinion concurring in part and concurring
in the judgment.
*
The Honorable Amul R. Thapar, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
1
No. 08-3858 Stolaj, et al. v. Holder Page 2
_________________
OPINION
_________________
ROGERS, Circuit Judge. Aleksander and Diella Stolaj, citizens of Albania,
petition for review of the decision of the Board of Immigration Appeals that affirmed the
Immigration Judge’s removal order. The IJ found the Stolajs removable due to fraud in
their asylum applications and because they had no valid entry documents at the time of
their adjustment of status. Contrary to the Stolajs’ arguments, the five-year statute of
limitations on rescission proceedings did not bar the Government from initiating removal
proceedings based on the Stolajs’ fraud. In addition, the IJ did not err in allowing the
Government to initiate removal proceedings without first seeking to revoke the Stolajs’
asylee status, and the IJ properly denied the Stolajs’ motion to subpoena material
witnesses. Because the decisions of the IJ and the BIA are supported by substantial
evidence and are not manifestly contrary to the law, they must be upheld.
I.
Aleksander and Diella Stolaj, husband and wife, are citizens of Albania who
entered the United States on February 26, 1996. On December 18, 1996, they each filed
applications for asylum, but on January 23, 1997, Aleksander Stolaj withdrew his
application and requested that he be included on his wife’s application.
Asylum Officer Mark Bastian of the New York Asylum Office interviewed
Diella Stolaj on the same day that Aleksander withdrew his application, and filed an
assessment memo on the following day. Officer Bastian found that Diella Stolaj “has
not shown any past persecution” and that her “fear of future persecution in Albania is
not sustained by the Acosta 4 prong test for well foundedness.” Despite this assessment,
Diella Stolaj was granted asylum on February 6, 1997, because she had “established a
well-founded fear of persecution upon return to [Albania].” Aleksander Stolaj was
granted derivative asylum the same day. The Stolajs adjusted to lawful permanent
resident status on October 1, 1998.
No. 08-3858 Stolaj, et al. v. Holder Page 3
The FBI began investigating allegations that Asylum Officer John Shandorf,
Bastian’s supervisor, had accepted bribes in exchange for granting asylum applications.
On November 17, 1998, the FBI arrested Luigi Berishaj based on information that
Berishaj was collecting money from Albanian friends and paying Shandorf to secure
political asylum for them. The FBI report1 states that:
From in or about mid-1996 until September, 1997 BERISHAJ made cash
payments to SHANDORF in connection with approximately twenty
cases. Each time BERISHAJ paid SHANDORF between $1,500 and
$2,000. In exchange for these payments SHANDORF agreed to provide
assistance in securing political asylum for these individuals. In all but
three or four of the twenty cases mentioned above the applicants were
granted political asylum.
Berishaj indicated that Diella Stolaj was one of the individuals who paid him to obtain
political asylum through Shandorf.
Shandorf was indicted for his involvement in this bribery scheme. During
Shandorf’s trial, Berishaj testified about his involvement in the scheme and his
interactions with the Stolajs. Berishaj testified that Aleksander Stolaj approached him
for help in obtaining asylum, and Berishaj subsequently spoke with Shandorf about the
Stolajs. When Berishaj told Shandorf that the Stolajs lived in Detroit, Shandorf advised
Berishaj that the couple should use a Westchester, New York, address on their
application. (Shandorf worked out of the New York Asylum Office.) Berishaj filled out
the asylum applications for the Stolajs and submitted the forms to the Vermont Service
Center. Berishaj accompanied the Stolajs to their interview at the New York Asylum
Office. Shandorf told Berishaj to wait with the Stolajs in the cafeteria until Shandorf
called the Stolajs into the office. Berishaj testified that Shandorf was in the interview,
but could not recall if there was another officer present.
1
This FBI report is part of the administrative record but was not admitted into evidence by the
IJ and therefore cannot support the IJ’s decision. Much of the same information is contained in Berishaj’s
testimony from Shandorf’s trial and Shandorf’s indictment, which were admitted into evidence. The
information from the FBI report is used only for background purposes.
No. 08-3858 Stolaj, et al. v. Holder Page 4
On July 9, 2003, the Department of Homeland Security initiated removal
proceedings by issuing Notices to Appear to the Stolajs. The Notices to Appear stated
that the Stolajs were subject to removal based on the following allegations:
8. You procured your admission, visa, other documentation or
benefit by fraud or by willfully misrepresenting a material fact, to wit:
You obtained the immigration benefit of asylee status by fraud; a
supervisor convicted of granting asylum in exchange for bribes changed
your denial to a grant for the sum of $3,000.
9. At the time of your adjustment to permanent resident status
you did not then possess or present a valid immigrant visa, reentry
permit, order crossing identification card, or other valid entry document,
and you were not exempt therefrom.
The Stolajs filed several motions prior to their individual hearings, including a motion
to terminate and a motion to subpoena material witnesses.
The IJ conducted a merits hearing on July 7, 2005, at which Aleksander and
Diella Stolaj testified. The Stolajs testified that they lived with Diella Stolaj’s family in
Detroit when they first entered the United States in February 1996. The Stolajs testified
that they moved to New York in April 1996 and lived there until April 1997 when they
returned to Michigan. A few months prior to filing their asylum application in
December 1996, the Stolajs testified that they ran into Berishaj in a restaurant in
Michigan.2 The IJ summarized Aleksander Stolaj’s testimony regarding the Stolajs’
interactions with Berishaj:
Male respondent testified that he applied for asylum in December 1996
or January 1997. His wife’s sister told him about the availability of
political asylum. About a month and a half before submitting the
application, he went with his wife and her sister to pick up the
application at a travel agency in Hamtramck [Michigan]. After picking
up the application, they went to a restaurant to get some food and to wait
for female respondent’s uncle to come assist them in filling out the
forms. Luigji Berishaj came into the restaurant and recognized female
respondent from Yugoslavia. They talked, and Berishaj offered to help
2
The Government attorney questioned Aleksander Stolaj about this encounter with Berishaj in
Michigan, which took place during the time Stolaj testified he was living in New York. Though the time
line and location of these events is unclear from his testimony, Stolaj testified that he traveled back to
Michigan because his wife’s sister told him about how to pick up asylum forms in the area.
No. 08-3858 Stolaj, et al. v. Holder Page 5
fill out the asylum applications. Berishaj said nothing about having filled
out other asylum applications. Berishaj would ask each question,
respondents would reply, and Berishaj would write the statement in
English. After completing the form, Berishaj read it back to them.
Berishaj offered to mail the applications with an envelope obtained at the
travel agency. Male respondent denied giving Berishaj any money in
exchange for his help and also stated that no one else gave Berishaj any
money on his behalf.
On December 13, 2006, the IJ found that the Stolajs were removable because
“[t]he Government has proven through clear and convincing evidence that the
respondents were granted asylum through fraud.” The IJ summarized the reasons
supporting this conclusion:
The Government has provided a transcript of a criminal proceeding
containing the sworn testimony of the individual who respondents admit
completed their applications for them stating that respondents received
their asylum due to the improper interference of an asylum supervisor,
John Shandorf, who was paid for his help. The Government presented
the incredible testimony of the respondents on the circumstances
concerning their encounter with Berishaj. Finally, the Government
showed that the claimed New York residence was a misrepresentation
provided to ensure that the respondents would be able to benefit from
Berishaj's relationship with John Shandorf.
The IJ also found that the Stolajs were removable “because there was no valid basis for
their adjustment of status. As the Government has shown that the asylum and following
adjustment were obtained by fraud, and as respondents admitted originally overstaying
their visas, the Government has proven the respondents have no valid documents.”
On January 12, 2007, the Stolajs appealed the IJ’s decision to the Board of
Immigration Appeals (“BIA”). The Stolajs argued that: (1) the Government’s removal
action was barred by the five-year statute of limitations on rescission proceedings in
8 U.S.C. § 1256(a); (2) the IJ improperly allowed the Government to initiate removal
proceedings without first revoking the Stolajs’ asylee status; (3) the record did not
support a finding that the Stolajs engaged in fraud in their asylum application; (4) the IJ
applied the wrong standard in revoking the Stolajs’ permanent resident status; (5) the IJ
No. 08-3858 Stolaj, et al. v. Holder Page 6
abused his discretion in denying the Stolajs’ motion to subpoena material witnesses; and
(6) the IJ erred in finding the Stolajs not credible.
On June 26, 2008, the BIA adopted and affirmed the IJ’s decision and dismissed
the Stolajs’ appeal. The BIA found that the Stolajs’ status as lawful permanent residents
or asylees did not immunize them from removal proceedings, citing Matter of Smriko,
23 I. & N. Dec. 836 (BIA 2005). The BIA also found “no adequate basis to disturb the
Immigration Judge’s finding that the respondents obtained their asylee status through
fraud, based on the properly admitted transcript of the testimony of Luigi Berishaj . . . .”
“Thus, the DHS satisfied its burden of proving by clear and convincing evidence that the
respondents were removable.” Finally, the BIA found that the IJ properly denied the
Stolajs’ motion to subpoena material witnesses and that there was no evidence that the
IJ “discarded his role as a neutral arbiter.”
The Stolajs filed a timely petition for review in this court on July 10, 2008. On
appeal, the Stolajs raise the same arguments they raised before the BIA.
II.
The Government was not time-barred from initiating removal proceedings
against the Stolajs. The five-year statute of limitations on rescission proceedings found
in 8 U.S.C. § 1256(a) does not apply to the removal proceedings brought against the
Stolajs.
At the time the Government initiated removal proceedings, the Stolajs had
successfully adjusted their statuses to permanent lawful residents. The Stolajs argue that
the Government was barred from “placing Petitioners in Rescission proceedings more
than 5 years after their status was adjusted to that of permanent resident status.” The
Stolajs base this argument on the statute defining the power of rescission of lawful
permanent resident status:
If, at any time within five years after the status of a person has been
otherwise adjusted under the provisions of section 1255 or 1259 of this
title or any other provision of law to that of an alien lawfully admitted for
permanent residence, it shall appear to the satisfaction of the Attorney
No. 08-3858 Stolaj, et al. v. Holder Page 7
General that the person was not in fact eligible for such adjustment of
status, the Attorney General shall rescind the action taken granting an
adjustment of status to such person and cancelling removal in the case of
such person if that occurred and the person shall thereupon be subject to
all provisions of this chapter to the same extent as if the adjustment of
status had not been made. Nothing in this subsection shall require the
Attorney General to rescind the alien’s status prior to commencement of
procedures to remove the alien under section 1229a of this title, and an
order of removal issued by an immigration judge shall be sufficient to
rescind the alien’s status.
8 U.S.C. § 1256(a). The Stolajs assert that the Government attempted to circumvent the
statute of limitations on rescission proceedings by initiating removal proceedings
instead. The Stolajs argue that, under these circumstances, § 1256(a)’s five-year statute
of limitations also applies to removal proceedings.
The Stolajs recognize that the Attorney General and several circuits have rejected
the argument that the five-year statute of limitations on rescission proceedings in
§ 1256(a) applies to removal proceedings. See Matter of Belenzo, 17 I. & N. Dec. 374
(A.G. 1981); Asika v. Ashcroft, 362 F.3d 264 (4th Cir. 2004); Kim v. Holder,
560 F.3d
833, 836-38 (8th Cir. 2009); Monet v. INS,
791 F.2d 752, 754 (9th Cir. 1986); Oloteo v.
INS,
643 F.2d 679, 681-83 (9th Cir. 1981). However, the Stolajs urge this panel to
follow the contrary conclusion of the Third Circuit in Bamidele v. INS,
99 F.3d 557 (3d
Cir. 1996) (later reaffirmed in Garcia v. Attorney General,
553 F.3d 724 (3d Cir. 2009)),
and hold that § 1256(a)’s statute of limitations applies to removal proceedings. We
decline to do so.
By its own terms, § 1256 places a time bar only on the Government’s attempt to
rescind the status of a lawful permanent resident, and does not apply to removal
proceedings. In an attempt to clarify the separate nature of removal and rescission
proceedings, Congress amended § 1256(a) in 1997 by adding the final sentence. See
Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. 104-208,
Div. C., Title III, § 378(a), 110 Stat. 3009. This amendment explicitly allows the
Government to initiate removal proceedings, such as those brought against the Stolajs,
without first rescinding the alien’s permanent resident status.
No. 08-3858 Stolaj, et al. v. Holder Page 8
To the extent that there might be ambiguity in the application of § 1256(a)’s
statute of limitations to removal proceedings based on charges that would also support
rescission of status, we defer to the Attorney General’s interpretation because it is “based
on a permissible construction of the statute.” Chevron, U.S.A., Inc. v. Natural Res. Def.
Council, Inc., 467 U.S. 837, 863 (1984); see also
Asika, 362 F.3d at 269;
Kim, 560 F.3d
at 837-38. The Attorney General first resolved any ambiguities in § 1256(a) in a 1962
opinion: “I conclude that since [8 U.S.C. § 1256] only limits the Attorney General’s
authority to rescind an adjustment of status, the lapse of more than five years since
applicant’s adjustment does not bar an exclusion proceeding based upon the alleged
fraudulent procurement of an entry visa prior to his adjustment of status.” Matter of S—,
9 I. & N. Dec. 548, 557 (A.G. 1962).
In Bamidele, the Third Circuit rejected the Attorney General’s construction
because, the court reasoned, that construction would essentially read the statute of
limitations on rescissions out of existence—that is, the Government could always do
something through removal that it could not do otherwise through rescission. See
Bamidele, 99 F.3d at 564. However, the Third Circuit did not sufficiently credit the
important role played by the statute of limitations on rescissions even though it does not
apply to removal proceedings. As the Fourth Circuit explained, the five-year statute of
limitations on rescission of status has a meaningful role because the INA provides far
fewer procedural protections for rescission proceedings than for removal proceedings:
Under the Act, rescission proceedings are subject to few, if any,
procedural protections, see 8 U.S.C. § 1256; deportation proceedings, in
contrast, are subject to extensive procedural regulations set forth in 8
U.S.C. § 1229a. In light of this difference in the two procedures, section
246(a)’s five-year limitation on rescission—even if interpreted to apply
only to rescission proceedings—provides an important safeguard to
aliens like Asika, who have been in the country for more than five years
after their status has been erroneously adjusted, by forcing the Attorney
General to establish their deportability through the more rigorous
procedures of removal, see 8 U.S.C. § 1229a, rather than the less
procedurally-onerous process of rescission.
No. 08-3858 Stolaj, et al. v. Holder Page 9
Asika, 362 F.3d at 269; see also Belenzo, 17 I. & N. Dec. at 382-83; Matter of S—, 9 I.
& N. Dec. at 555 n.8. The Attorney General reasonably concluded that § 1256(a)’s
statute of limitations only applies to rescission proceedings.
By its own terms, § 1256(a)’s statute of limitations only applies to rescission
proceedings. Even if the provision is ambiguous when charges supporting removal
would also support rescission of status, the Attorney General’s opinion that § 1256(a)
does not apply to removal is reasonable and is entitled to deference. Therefore, the
Government was not time-barred from bringing removal proceedings against the Stolajs.
III.
The Stolajs argue that the IJ and the BIA erred in allowing the Government to
initiate removal proceedings without first following the requirements for revoking the
Stolajs’ asylee status. This argument is without merit. The BIA correctly found that the
Stolajs are not immune from removal simply because their asylee status was never
revoked.
The IJ determined that “as legal permanent residents, the asylum revocation
procedures are irrelevant to the respondents.” The BIA affirmed the IJ’s decision on this
point but clarified the supporting reasons. The BIA noted that in Matter of Smriko, 23
I. & N. Dec. 836 (BIA 2005), “we determined that a refugee who had adjusted his status
to lawful permanent resident and later was convicted of crimes was not immune from
removal because his refugee status had not been terminated.” In Smriko, the BIA did not
focus on whether a refugee loses his status as a refugee when he becomes a legal
permanent resident, as is implied by the IJ’s decision. Rather, the BIA held that refugee
status does not confer immunity from removal, and therefore revocation of refugee status
is not required before the initiation of removal proceedings. Id. at 838-40. “Although
some vestiges of refugee status are afforded by regulation to refugees who have been
admitted as lawful permanent residents, termination of refugee status is not a
precondition to the initiation of removal proceedings against refugees who have adjusted
their status.”
Id. at 837; see also Kaganovich v. Gonzales,
470 F.3d 894, 897 (9th Cir.
2006); Romanishyn v. Attorney General,
455 F.3d 175, 183-84 (3d Cir. 2006).
No. 08-3858 Stolaj, et al. v. Holder Page 10
IV.
The BIA correctly found that the Stolajs were removable because “they had
obtained the immigration benefit of asylum by fraud,” and “since their asylee status was
fraudulently procured, [they] were inadmissible as immigrants with no valid visa or entry
document.” See 8 U.S.C. § 1182(a)(6)(C)(i), (a)(7)(A)(i)(I). The Stolajs argue that the
record did not support these findings. Because the BIA adopted and supplemented the
IJ’s decision, we review both decisions. Because the Stolajs are previously admitted
aliens, the Government bears the burden of establishing removability by “clear and
convincing evidence.” 8 U.S.C. § 1229a(c)(3)(A). To reverse the IJ and the BIA’s
determination that the Government met this burden, this panel must find that the
evidence “not only supports a contrary conclusion, but indeed compels it.” Yu v.
Ashcroft, 364 F.3d 700, 702-03 (6th Cir. 2004) (internal quotation marks omitted); see
also 8 U.S.C. § 1252(b)(4)(B). Because the evidence does not compel a conclusion
contrary to the decisions of the IJ and the BIA, and because the decisions are not
“manifestly contrary to law,” 8 U.S.C. § 1252(b)(4)(C), we uphold the decisions of the
IJ and the BIA.
The decisions of the IJ and the BIA were properly supported by the testimony
given by Berishaj during Shandorf’s trial. Berishaj’s testimony clearly implicated the
Stolajs in a fraudulent scheme to obtain asylum. The IJ found that “[w]hile the evidence
may be insufficient to show the respondents bribed the asylum officer, the Government
need only show fraud or willful misrepresentation, not bribery. Thus, the Government’s
failure to prove a quid pro quo arrangement is not determinative of whether it has proven
its case.” The IJ correctly stated the standard from 8 U.S.C. § 1182(a)(6)(C)(i):
Any alien who, by fraud or willfully misrepresenting a material fact,
seeks to procure (or has sought to procure or has procured) a visa, other
documentation, or admission into the United States or other benefit
provided under this chapter is inadmissible.
The IJ’s conclusion that Berishaj’s testimony supports finding the Stolajs removable
under this provision is not manifestly contrary to law.
No. 08-3858 Stolaj, et al. v. Holder Page 11
In addition, the IJ properly found that “the Government also established
respondents’ fraud through respondents’ own testimony.” The IJ based this conclusion
on the following findings:
• “The[ Stolajs’] explanation of how Berishaj conveniently
appeared and, in an encounter devoid of any catching up or small
talk, filled out respondents’ applications, and disappeared is
simply unbelievable.”
• “The inconsistencies between respondents’ and Mrs. Gjonaj’s
[Diella Stolaj’s sister] testimony regarding Mr. Berishaj’s prior
experience with applications and the discussion involving
payment further detract from the credibility of testimony.”
• There were multiple inconsistencies in the Stolajs’ descriptions
of where they lived in New York. In addition, Aleksander Stolaj
said that he had never heard of Yonkers, and then later
remembered that that was where he lived in New York. He also
stated that he took the train to work, but described the train as
above ground.
• Diella’s sister testified that the Stolajs were living in Detroit at
the time the asylum applications were filled out and at the time
of the asylum interview. She later corrected herself and said that
the Stolajs were traveling back and forth between New York and
Detroit because her, and Diella’s, father was ill, but later testified
that their father died in 1978.
• Aleksander Stolaj’s withdrawal of his asylum application on the
day of Diella’s interview appears to indicate that he knew what
the outcome was going to be.
• The Government submitted the Stolajs’ fingerprint cards taken on
August 8, 1996, in Detroit. “The cards contain a Hamtramck,
Michigan address that had been whited-out and replaced with the
Yonkers, New York address. . . . While there are a number of
legitimate reasons for an address change on a fingerprint card,
there is no explanation as to why the address was changed from
an address at which respondents supposedly did not reside until
April or May of 1997, at least nine months after the fingerprint
card was dated and at least two months after they were granted
asylum.”
• The findings in Officer Bastian’s assessment memo indicate that
Diella Stolaj’s application for asylum was not actually granted on
the merits.
• There were multiple inconsistencies in Diella Stolaj’s asylum
claims.
No. 08-3858 Stolaj, et al. v. Holder Page 12
The BIA cited many of the same grounds in its decision. The BIA properly
found “no adequate bases to disturb the Immigration Judge’s finding that the respondents
obtained their asylee status through fraud.”
The decisions of the IJ and the BIA are supported by the documentary evidence,
the transcript of Berishaj’s trial testimony, and the inconsistencies in the Stolajs’
testimony.3 The IJ and the BIA did not err in finding the Stolajs removable based on
their fraud in obtaining asylum.
V.
The IJ properly denied the Stolajs’ motion to subpoena material witnesses based
on the Stolajs’ failure to comply with agency procedures for obtaining a subpoena. The
Stolajs argue that the IJ abused his discretion in denying their motion and that their Fifth
Amendment due process rights and Sixth Amendment confrontation rights were violated.
These arguments are unavailing.
The BIA correctly found that the IJ properly denied the subpoena motion because
the Stolajs failed to comply with the requirements for obtaining a subpoena from an IJ.
The INA states that an “immigration judge may issue subpoenas for the attendance of
witnesses and presentation of evidence.” 8 U.S.C. § 1229a(b)(1) (emphasis added).
Immigration regulations state:
A party applying for a subpoena shall be required, as a condition
precedent to its issuance, to state in writing or at the proceeding, what he
or she expects to prove by such witnesses or documentary evidence, and
to show affirmatively that he or she has made diligent effort, without
success, to produce the same.
8 C.F.R. § 1003.35(b)(2). The IJ denied the Stolajs’ motion because they failed to
comply with the requirements of this provision. While the Stolajs’ motion appears to
3
The Stolajs also argue that the IJ “mischaracterized the record of proceeding and erred in finding
that petitioners were not credible.” To the extent that the Stolajs attack the IJ’s conclusions based on the
evidence, the decision was not manifestly contrary to law. To the extent that the Stolajs attack the IJ’s
factual determinations, the Stolajs do not make any arguments that show how the IJ clearly erred.
No. 08-3858 Stolaj, et al. v. Holder Page 13
make some attempt to show what they expected to prove with some of the witnesses,4
the motion does not show that they had “made a diligent effort, without success, to
produce the same.” The IJ properly exercised his discretion and denied the subpoena
motion.
The Stolajs’ constitutional claims are without merit. The Stolajs do not explain
how the IJ’s rejection of their motion based on failure to comply with the requirements
of 8 C.F.R. § 1003.35(b)(2) violated their Fifth Amendment due process rights. In
addition, the Stolajs’ brief argument based on the Confrontation Clause, citing Crawford
v. Washington, 541 U.S. 36 (2004), is inapposite because the Sixth Amendment does not
apply to the Stolajs’ removal proceedings, see Mustata v. United States Dept. of Justice,
179 F.3d 1017, 1022 n.6 (6th Cir. 1999).
VI.
For the foregoing reasons, we deny the Stolajs’ petition for review.
4
The Stolajs sought to subpoena the testimony of Shandorf, Bastian, Berishaj, Vladimir Smalaj
(interpreter at the asylum hearing), and “FBI agents who authored reports regarding Stolaj.”
No. 08-3858 Stolaj, et al. v. Holder Page 14
_______________________________________________________________
CONCURRING IN PART AND CONCURRING IN THE JUDGMENT
_______________________________________________________________
KAREN NELSON MOORE, Circuit Judge, concurring in part and concurring
in the judgment. I write separately because I believe it is unnecessary to weigh in on the
circuit split concerning the applicability of the five-year statute of limitations in 8 U.S.C.
§ 1256(a) to certain removal proceedings. The circuit split involves the narrow question
of whether § 1256(a)’s five-year statute of limitations on rescission proceedings (i.e.,
proceedings to rescind an alien’s permanent residency status) applies to removal
proceedings that are based solely on fraud or error in the procurement of permanent-
residency status. Three circuits have deferred to the Attorney General’s opinions in
Matter of S-, 9 I. & N. Dec. 548, 557 (A.G. 1962), and Matter of Belenzo, 17 I. & N.
Dec. 374, 384 (A.G. 1981), and have held that § 1256(a)’s five-year statute of limitations
does not apply to removal proceedings even when removal is based solely on violations
or errors in the adjustment-of-status process. See Kim v. Holder, 560 F.3d 833, 837-38
(8th Cir. 2009); Asika v. Ashcroft,
362 F.3d 264, 269-71 (4th Cir. 2004); Monet v. INS,
791 F.2d 752, 754 (9th Cir. 1986). However, the Third Circuit has rejected the Attorney
General’s construction of § 1256(a) and has held that the five-year statute of limitations
applies to removal proceedings when the removal proceedings are based solely on an
attack on the adjustment process. Bamidele v. INS,
99 F.3d 557, 564-65 (3d Cir. 1996).
In my view, we need not weigh in on this circuit split because the disagreement
in these cases centers on an issue that is absent from the instant case. Each of the cases
cited above involved aliens whose removability was based solely on fraud or error in the
adjustment process. See Kim, 560 F.3d at 835 (fraud in obtaining green card/adjusting
status);
Asika, 362 F.3d at 266 (erroneous adjustment by INS);
Monet, 791 F.2d at 753
(concealment of prior conviction when seeking adjustment);
Bamidele, 99 F.3d at 558
(fraud in adjusting status through sham marriage). By contrast, the Stolajs’ removal was
not based on fraud or error in the adjustment process, but rather on their fraud in
obtaining asylum. There is no dispute in the case law that when, as here, removal
No. 08-3858 Stolaj, et al. v. Holder Page 15
proceedings are based on grounds entirely separate and distinct from the adjustment-of-
status process, § 1256(a)’s five-year statute of limitations does not apply. It is therefore
unnecessary and imprudent for us to reach the narrower—and more difficult—question
that has split the circuits. See Arellano-Garcia v. Gonzales,
429 F.3d 1183, 1186 (8th
Cir. 2005) (concluding that § 1256(a)’s statute of limitations was inapplicable and
declining to comment on Bamidele, Asika, and Belenzo because the removal proceedings
were based on the alien’s “prior conviction, not on the erroneous grant of permanent
residency status”). Accordingly, I concur in the result of Part II without joining its
reasoning. On the remaining issues, I concur and join in the majority opinion.
