                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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




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Recommended Citation
"Tsymbalenko v. Atty Gen USA" (2002). 2002 Decisions. Paper 362.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/362


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                                     NOT PRECEDENTIAL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
