                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-19-2004

Wiewiorski v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-3860




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                                                         NOT PRECEDENTIAL

                    THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 02-3860
                                      ___________

                               BOGDAN WIEWIORSKI,

                                            Petitioner

                                             v.

                     JOHN ASHCROFT, ATTORNEY GENERAL
                           OF THE UNITED STATES

                                      ___________

            APPEAL FROM THE BOARD OF IMMIGRATION APPEALS

                                    (No. A77 050 592)
                                      ___________

                            ARGUED JANUARY 26, 2004

         BEFORE: NYGAARD, FUENTES, and STAPLETON, Circuit Judges.

                                (Filed April 19, 2004)
                                     ___________

John D. Perez, Esq. (Argued)
2 nd Floor
41-51 Wilson Avenue
Newark, NJ 07105

             Counsel for Petitioner


Russell J.E. Verby, Esq. (Argued)
Jocelyn L. Wright, Esq.
William C. Minick, Esq.
United States Department of Justice
Office of Immigration Litigation
PO Box 878
Ben Franklin Station
Washington, DC 20044

              Counsel for Respondent

                                       ___________

                               OPINION OF THE COURT
                                    ___________


NYGAARD, Circuit Judge.

              The Immigration Judge (“IJ”) denied Bogdan Wiewiorski’s motion to

terminate removal proceedings and the Board of Immigration Appeals (“BIA”) affirmed

without opinion. Wiewiorski appeals. Because we agree with the IJ that Wiewiorski did

not present evidence of his prima facie eligibility for amnesty under Section 245A of the

Immigration and Nationality Act, we will affirm.1

                                             I.

              Wiewiorski, a native of Poland, entered the United States without being

admitted or paroled. The date of Wiewiorski’s entry is unclear and is of central




1.      Because the BIA affirmed the IJ’s decision under its streamlining regulations, we
review the IJ’s decision on appeal. Dia v. Ashcroft, 353 F.3d 228, 245 (3d Cir. 2003) (en
banc). We review the IJ’s findings of fact to ensure that they are supported by substantial
evidence. Id. at 247. We exercise plenary review of the IJ’s legal conclusions. Valansi
v. Ashcroft, 278 F.3d 203, 207 (3d Cir. 2002).

                                             2
importance in this appeal. The Government initially alleged that Wiewiorski entered the

United States in 1990. Wiewiorski responded by claiming, in his motion to terminate, that

he entered in 1984. Other evidence showed Wiewiorski was present in the United States

in December 1982.

              On May 30, 1999, the Government served Wiewiorski with a Notice to

Appear that alleged he was an alien present in the United States without being admitted or

paroled. Wiewiorski admitted that he was subject to removal but moved to terminate his

removal proceedings based on an amnesty application he claimed to have submitted in

late 1989 or early 1990. Based on Wiewiorski’s failure to present sufficient evidence

that he had actually applied for amnesty, or that he was eligible for temporary resident

status under that program, the IJ denied the motion.

                                              II.

              Wiewiorski argues that the IJ committed error by denying his motion to

terminate and that the BIA erred by affirming that decision.

              Under Section 245A of the INA (“Section 245A”), an alien who is

otherwise out of status in this country is eligible for temporary resident status if he or she

satisfies several criteria. 8 U.S.C. § 1255a(a). One essential qualification is that the alien

“establish that he entered the United States before January 1, 1982, and that he has

resided continuously in the United States in an unlawful status since such date.” 8 U.S.C.

1255a(a)(2)(A).



                                              3
              Wiewiorski moved to terminate his removal proceedings based on his claim

that he filed an application to take advantage of Section 245A. In order to succeed on

such a motion, Wiewiorski must establish his prima facie eligibility for the relief

provided under the amnesty program. 8 U.S.C. § 1255a(e)(2). The IJ correctly found that

Wiewiorski failed to establish such eligibility. There is simply no evidence that

Wiewiorski entered the United States before January 1, 1982. At best, and ignoring

Wiewiorski’s own claim that he entered in 1984, a letter from Wiewiorski’s past

employer shows that he was present in the United States in December 1982. This is

almost a full year too late to satisfy the requirements of Section 245A and, therefore, the

IJ was correct in denying Wiewiorski’s motion to terminate.

              The BIA was also well within its discretion in affirming the IJ’s decision

without opinion. Sitting en banc, this Court recently held that the BIA’s affirmance

without opinion procedure does not violate an alien’s due process rights. Dia, 353 F.3d at

238. Thus, Wiewiorski’s arguments to the contrary are disposed of by that holding.

Wiewiorski’s only remaining argument is that the BIA erred by using its affirmance

without opinion procedure in this particular case because, according to Wiewiorski, the

IJ’s decision contained non-harmless error. However, based on our above analysis, we

find no error in the IJ’s decision. Accordingly, the BIA did not err by affirming the

decision.

              For the foregoing reasons, we will affirm the decision of the BIA.



                                             4
