                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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




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                                               NOT PRECEDENTIAL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




                                             3
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.




                                             5
