                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-7-2005

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Precedential or Non-Precedential: Precedential

Docket No. 03-3569




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Recommended Citation
"Kanivets v. Atty Gen USA" (2005). 2005 Decisions. Paper 491.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/491


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                                          PRECEDENTIAL


          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT




             Nos. 03-3569, 03-4187 and 04-3164




                       OLEG KANIVETS,
                               Petitioner in 03-3569/4187

                              vs.

                 ALBERTO GONZALES,
            Attorney General of the United States

                           Respondent in 03-3569/4187
                       _______________

      ON PETITIONS FOR REVIEW FROM ORDERS
      OF THE BOARD OF IMMIGRATION APPEALS
      DATED JULY 31, 2003 and OCTOBER 15, 2003
                (BIA No. A77-554-283)
                    ____________


                       OLEG KANIVETS

Appellee in 04-3164
                               vs.
     BILL RILEY, as Regional Director Immigration and
   Customs Enforcement Department of Homeland Security,
       or his successor or Assigns; JOHN ASHCROFT,
              Attorney General of the United States

Appellant in 04-3164
                         ____________
    INITIALLY DOCKETED AS AN APPEAL FROM
       THE UNITED STATES DISTRICT COURT
  FOR THE EASTERN DISTRICT OF PENNSYLVANIA
 PRIOR TO THE ENACTMENT OF THE REAL ID ACT OF
                        2006
               (D.C. No. 03-cv-05377)

            District Judge: Honorable Marvin Katz
                         ____________
                      Argued July 15, 2005

   Before: SLOVITER, McKEE and WEIS, Circuit Judges.
                    ___________

                   Filed: September 7, 2005
                        ____________

Lawrence H. Rudnick, Esquire (ARGUED)
Steel, Rudnick & Ruben
1608 Walnut Street, Suite 1500
Philadelphia, PA 19103

Attorney for Appellee Oleg Kanivets


Greg D. Mack, Esquire (ARGUED)
Office of Immigration Litigation
Civil Division
U.S. Department of Justice
P.O. Box 878, Ben Franklin Station
Washington, DC 20044-0878

Attorney for Appellant Bill Riley, as Regional Director
Immigration and Customs Enforcement Department of
Homeland Security, or His Successor or Assigns; John Ashcroft,
Attorney General of the United States

                      _______________

                          OPINION
WEIS, Circuit Judge.
               In this case the Board of Immigration Appeals denied
a timely filed motion for rehearing on the ground that it was not
decided until after the period for voluntary departure had elapsed.
We conclude that the time allotted for departure is tolled pending
a ruling on the motion and accordingly grant the petition for
review.
             Oleg Kanivets is a Russian Jew who is a citizen of
Kyrgyzstan. He entered the United States on January 21, 1998 and
was authorized to stay until January 20, 1999. He filed for asylum
on August 2, 1999.
              Kanivets contends that he suffered persecution in
Kyrgyzstan based on his religion. He describes a pattern of threats
and assaults that were ignored by the local police. In April 1997,
Kanivets was assaulted by four Kyrgyz men who uttered an ethnic
slur and threatened to kill him if he did not leave the country. He
reported the assault to the police, but they told him that it was too
minor an incident to investigate and advised him to leave for Israel
if he was dissatisfied.
              Kanivets alleged that the same four men assaulted
him several months later and questioned why he had not gone to
Israel. He suffered a concussion and was hospitalized for 20 days.
Following that assault, Kanivets received several threatening phone
calls from unidentified callers. His mother had previously received
threatening notes after his sister moved to Israel in February 1997.
               Kanivets testified that his supervisor and co-workers
at the dental clinic where he worked harassed and threatened him.
Discharged in May 1997, he alleged that he was denied further
employment in Kyrgyzstan. Kanivets asserted that his family’s
apartment was ransacked after he departed for the United States.
His mother reported the incident to the police, but they failed to
investigate it. She entered the United States in April 1999.
               The IJ denied Kanivets’ application for asylum and
withholding of removal, but granted a sixty-day period for
voluntary departure. Holding that the application for asylum was
untimely, the IJ’s decision emphasized the lack of evidence to
bolster Kanivets’ claim of persecution. Based on this weakness in
the petitioner’s case, the IJ determined that Kanivets had failed to
establish (1) that he qualified as a refugee, (2) that he was entitled
to withholding of removal and (3) that he faced a clear probability
of torture if he returned to Kyrgyzstan.
              According to the IJ, “[t]he objective evidence in this
case fails to show that Jewish people in Kyrgyzstan suffer
persecution either at the hands of the government of that country,
or by groups that the government of that country is unable or
unwilling to control.” He noted that Jews have been emigrating
from Kyrgyzstan in steady numbers, but attributed this to
“animosity of the Kyrgyz against the Russian-speaking community,
which includes most Jews.”
             In contrast to the lack of objective evidence of anti-
Semitism, the IJ noted that:
              “Clearly, there had been instances of
              societal violence against those
              perceived as being “Russian” by the
              natives of Kyrgyzstan....The problem
              of Russians who remain in the former
              Soviet republics is well-known. . . .
              [Kanivets] went from being part of a
              favored minority that controlled the
              country, namely, the Russians, to
              being part of a despised minority. The
              long pent-up resentment of the natives
              of Kyrgyzstan has taken its toll in the
              country. But there is no objective
              basis for the respondent’s subjective
              claim that he has been the victim of
              persecution in Kyrgyzstan because of
              his Jewish ethnicity. The problem, if
              any, arose from the fact that he was
              perceived to be part of the former
              Russian masters...Arguably, the
              respondent may have been the victim
              of societal violence based upon the
              perception that he was a member of
              the Russian-speaking minority...”


The IJ concluded that “there is insufficient evidence in this record
to show that the government of Kyrgyzstan condones or instigates
persecution of those perceived to be Russians.”
              The IJ determined that Kanivets was removable as
charged, denied the application for asylum and granted a sixty-day
period for voluntary departure. The BIA affirmed on October 28,
2002 and provided an additional thirty-day period for voluntary
departure.
               On November 22, 2002, Kanivets filed timely
motions to reopen the order of removal, for a stay of removal, and
a remand for adjustment of status based on his alien worker
certification and his employer’s pending immigration petition. He
also asked for a reinstatement of voluntary departure.
               The BIA denied the motion to reopen on July 31,
2003, reasoning that petitioner was statutorily ineligible for
adjustment of status because he had failed to depart the country
before his period for voluntary departure had expired. On October
15, 2003, the Board denied the petitioner’s motion for
reconsideration. Kanivets petitioned for review in our Court on
August 27, 2003 and October 23, 2003.
               In the interim, on September 24, 2003, Kanivets filed
a petition for habeas corpus in the United States District Court for
Eastern District of Pennsylvania. That court granted relief and the
government appealed.
               The government (The Department of Homeland
Security)1 appeals the District Court’s order granting habeas corpus
relief and remanding the case to the BIA because of asserted legal
errors in the proceeding.
               The government argues (1) that the District Court
erred in weighing the sufficiency of the evidence, (2) that the IJ’s
ruling that the application for asylum was untimely is
unreviewable, and (3) that the denial of asylum was not within the
jurisdiction of the District Court.
              During our consideration of the two petitions for


  1.
 The Homeland Security Act of 2002, Pub.L. No. 107-296, 116
Stat. 2135 (2002) eliminated the INS and transferred its
enforcement functions to the Department of Homeland Security’s
Bureau of Immigration and Customs Enforcement.
review we learned that The Department of Homeland Security had
appealed the District Court’s habeas corpus order. We then
consolidated all three matters and held oral argument.
               After these appeals were taken, Congress enacted the
“Real ID Act” amending 8 U.S.C. § 1252, Pub. L. No. 109-13, 119
Stat. 2331 (2005) signed into law May 11, 2005 and effective on
that date. The Real ID Act, inter alia, shifted certain immigration
disputes formerly raised through habeas corpus in the district courts
to the courts of appeals and converted them into petitions for
review. Subsection (a)(5) provides that “a petition for review filed
with an appropriate court of appeals in accordance with this section
shall be the sole and exclusive means for judicial review of an order
of removal entered or issued under any provision of this chapter,
except as provided in subsection (e) of this section.” 2
                In the case before us, the petition for habeas corpus
was filed at a time when the District Court had jurisdiction over the
matter. Because it became effective on the date of enactment, the
Real ID Act applies to this appeal. See Papageorgiou v. Gonzales,
___ F.3d ___, No. 04-3135, 2005 WL 1490454 (3d Cir. June 24,
2005). In Bonhometre v. Gonzales, ___ F. 3d ___, No. 04-2037,
2005 WL 1653641, at *2 (3d Cir. July 15, 2005), we noted that
under the Real ID Act, cases pending in the district courts on the
date of enactment were to be converted to petitions for review and
transferred to the courts of appeals.
              The Real ID Act, however, is silent as to habeas
corpus petitions that were on appeal at the time of enactment. In
resolving that procedural gap, we concluded that such appeals
should be converted to petitions for review and retained by this
Court. See id. at *2; see also Kamara v. Department of Homeland
Security, No. 04-2647 (August 18, 2005). Therefore, the current
proceeding consists of three petitions for review.



 2.
Kanivets was deemed removable under 8 U.S.C. § 1227(a)(1)(B)
as an alien present in the United States in violation of law, and
the IJ denied his application for asylum and withholding of
removal under 8 U.S.C. § 1231(b)(3). The exceptions found in 8
U.S.C. § 1252(e) relate to orders under 8 U.S.C. § 1225(b)(1) and
are thus inapplicable here.
               One issue that is potentially dispositive is presented
by two of the petitions, those originally complaining of the BIA’s
failure to rule on petitioner’s request for reopening and the
consequent failure to rule on the merits of his alien worker permit
as a basis for adjustment of status.
               After the BIA’s original ruling, Kanivets had a
statutory right to request a reopening of his case. See 8 U.S.C. §
1229a(c)(7); see also 8 C.F.R. § 1003.2(c). He did so on
November 22, 2002, within the thirty-day period that the BIA had
allotted for the privilege of voluntary departure. In his petition,
Kanivets cited the fact that his employer had filed a pending
immigrant petition for alien worker with the INS.
                In denying the petition for rehearing, the BIA wrote,
“[w]e find that the respondent is statutorily ineligible to apply for
adjustment of status at the present time as a result of his failure to
depart the United States prior to the expiration of his period of
voluntary departure.” The BIA cited 8 U.S.C. § 1229c(d) and
Matter of Shaar, 21 I. & N. Dec. 541 (BIA 1996), aff’d 141 F.3d
953 (9 th Cir. 1998).
               In Matter of Shaar, the BIA decided that the filing of
a motion for reopening during the period of voluntary departure was
not an “exceptional circumstance” that allows grant of discretionary
relief. In denying Kanivets petition for reconsideration here, the
BIA elaborated, “. . . an alien who fails to depart following a grant
of voluntary departure, and who has been informed of the penalties
in section 240B(d) . . . is ineligible for a period of 10 years for
certain forms of discretionary relief, including adjustment of
status.”
              Under the BIA ruling, the result is that an alien who
does not leave the United States within the time specified in the
grant of voluntary departure is not entitled to adjustment of status.
On the other hand, if the alien leaves the country within the period
allowed for voluntary departure, he forfeits his motion to reopen.
8 C.F.R. § 1003.2(d).3


 3.
 8 C.F.R. § 1003.2(d) provides, in pertinent part, that:

Any departure from the United States, including the deportation
               Thus, the statutory and regulatory provisions produce
a significant conundrum. By statute, an alien is entitled to file one
motion to reopen proceedings within 90 days of the entry of an
order of removal. 8 U.C.S. § 1229a(c)(7)(A), (c)(7)(C)(i).4 An
alien may timely file a petition for reopening, but if the BIA does
not decide the petition within the period for voluntary departure, the
alien loses the right to have a ruling.
              This “Catch-22" situation was discussed at some
length in Azarte v. Ashcroft, 394 F.3d 1278 (9 th Cir. 2005). After
a review of the statutory and regulatory provisions, the Court of
Appeals observed that in Matter of Shaar, 21 I. & N. Dec. 541, the
BIA held that the practice of extending the time for voluntary
departures was terminated by enactment of a statute that restricted
such extensions. 8 U.S.C. § 1229a(c)(7). See Azarte, 394 F.3d at
1286.
               Before enactment of the statute, the practice had been
to extend voluntary departure freely so that the BIA would have
time to rule on reopening before the alien would have been required
to depart. See id. at 1286-87. Moreover, the period allowed for
voluntary departure had been more generous than that set out in the
statute. See id. at 1287.
               The Azarte Court opined that it was absurd to believe
that Congress, in providing for petitions to reopen, would intend to
preclude their adjudication by invocation of the voluntary departure
limitation. See id. at 1288-89. Accordingly, the Court held that a
timely petition for reopening in conjunction with a request for stay
of removal or voluntary departure tolls the period of voluntary
departure during the time during which the BIA considers the
motion. See id. at 1289.
              The Court of Appeals for the Tenth Circuit in



or removal of a person who is the subject of exclusion,
deportation, or removal proceedings, occurring after the filing of
a motion to reopen or a motion to reconsider, shall constitute a
withdrawal of such motion.

4.
A number of exceptions not relevant to this discussion are listed
in the statute.
Sidikhouya v. Gonzales, 407 F.3d 950 (10 th Cir. 2005), also rejected
the BIA’s Shaar approach. That Court held in agreement with
Azarte that an alien must be afforded an opportunity to receive a
ruling on the merits of a timely filed petition to reopen.
               We had the occasion to confront a similar problem in
Barrios v. Attorney General of the United States, 399 F.3d 272 (3d
Cir. 2005). In that case, the BIA denied a timely motion to reopen
because the period for voluntary departure had elapsed before the
motion was adjudicated on the merits. See Barrios, 399 F.3d at
273-74. Barrios involved 8 U.S.C. § 1252b(e)(2)(A) (repealed
1996), the predecessor to section 240B(d) of the INA, 8 U.S.C. §
1229c(d), so it is not precisely the text before us at the present time.
See id. at 274-75. In Barrios, as in Matter of Shaar, the applicable
statute provided that in the absence of “exceptional circumstances”
an alien who overstays his voluntary departure date was not eligible
for discretionary relief for a period of five years.
              Barrios rejected the reasoning of Matter of Shaar and
held that “the failure of immigration authorities to act on a
legitimate application for relief filed within the voluntary departure
period [was] an exceptional circumstance... .” Id. at 277. We
decided that the day that the motion was filed was the critical
beginning point, rather than the date of adjudication. See id.
Barrios also commented favorably on the Azarte reasoning,
although that case addressed the current statute, which does not
speak of “exceptional circumstances.”
              In Bhiski v. Ashcroft, 373 F.3d 363 (3d Cir. 2004),
we cited Matter of Shaar in a case where the alien asked for an
adjustment of status. That case, however, is clearly distinguishable
because the motion to remand was filed after the period of voluntary
departure had expired. See Bhiski, 373 F.3d at 366.
               Reynoso-Lopez v. Ashcroft, 369 F.3d 275 (3d Cir.
2004) is also distinguishable. There, the issue was whether we had
authority to reinstate a grant of voluntary departure and extend the
departure date. See Reynoso-Lopez, 369 F.3d at 277. We
concluded that the Court had no jurisdiction to issue such an order.
See id. That is a different situation from that presented here where
we hold that tolling applies during the period of time that the BIA
deliberates on a timely motion to reopen.
               Because a favorable disposition of Kanivets’ motion
may result in his being granted a visa, we need not rule on the
merits of the appeal from the grant of habeas corpus. At oral
argument, counsel for the petitioner conceded that if reopening were
granted the habeas corpus claim would be moot. Counsel for the
government stated that it is quite possible that a visa may be
available for Kanivets at this time. Given the strong possibility that
Kanivets will prevail on his application for reopening, it is likely
that the substantive claims underlying his habeas petition will
become moot.
                Accordingly, we will deny the petition for review in
Case No. 04-3164 (formerly the habeas petition) without prejudice
as moot. See Nationwide Mut. Ins. Co. v. Burke, 897 F.2d 734, 740
(4 th Cir. 1990) (district court could dismiss case without prejudice
as moot, but based on the outcome of a related state court action,
plaintiff’s claim might no longer be moot and it could file a new
case). If the motion for reopening is granted on remand, the BIA
could also re-examine whether the IJ (1) improperly rejected
Kanivets’ claims for lack of sufficient corroboration and (2) raised,
and then rejected, the possibility that Kanivets’ had a well-founded
fear of persecution based on his Russian ethnicity, or a combination
of nationality and religion.
                Accordingly, we hold that because Kanivets timely
filed his petition for reopening, the BIA should decide his motion
for reopening on the merits.
              The petitions for review in cases docketed at 03-3569
and 03-4187 will be granted. The petition for review at docket 04-
3164 will be denied as moot without prejudice.
