                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-30-2003

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-3729




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                                                     NOT PRECEDENTIAL

             UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT


                           No. 02-3729




         UNITED STATES EX REL. EVGIENI KOVALEV

                                v.

                    JOHN ASHCROFT,
      AS ATTORNEY GENERAL OF THE UNITED STATES;
           JAMES W. ZIGLAR, COMMISSIONER OF
      THE IMMIGRATION & NATURALIZATION SERVICE;
            WARDEN OF BERKS COUNTY PRISON

                                           Evgieni Kovalev,
                                                       Appellant




          On Appeal from the United States District Court
             for the Eastern District of Pennsylvania
               D.C. Civil Action No. 02-cv-04562
                (Honorable Michael M. Baylson)




          Submitted Pursuant to Third Circuit LAR 34.1(a)
                          July 28, 2003

Before: SCIRICA, Chief Judge, RENDELL and AMBRO, Circuit Judges

                       (Filed July 30, 2003)
                               OPINION OF THE COURT


SCIRICA, Chief Judge.

       Appellant Evgieni Kovalev, a native and citizen of Russia, entered the United

States on April 30, 1989 as a non-immigrant visitor for pleasure with authorization to

remain only until October 12, 1989. He overstayed his tourist visa. In December 1989 he

filed his first application for asylum which was denied. In March 1991, the Immigration

& Naturalization Service (“INS”) initiated deportation proceedings, charging him

pursuant to former section 241(a)(1)(C)(i) of the Immigration and Nationality Act

(“INA”) for remaining in the United States without permission. Kovalev appeared before

an Immigration Judge (“IJ”) and conceded that he was deportable; however, he again

applied for asylum and withholding of deportation. The IJ denied the asylum application

on March 30, 1993, but granted Kovalev permission to voluntarily depart to Russia on or

before June 30, 1993. The IJ’s order provided that, if Kovalev did not depart voluntarily,

the privilege would be withdrawn without further notice or proceedings and the order of

deportation to Russia would become immediately effective. App. 108-112.

       One day before he was scheduled to voluntarily depart Kovalev appeared at an INS

office and signed a Voluntary Departure Notice, which extended his departure date to

July 7, 1993. The Voluntary Departure Notice specifically informed him of the

consequences of failing to depart, including that he would be ineligible to apply for


                                             2
certain forms of relief, including adjustment of status, for five years after the scheduled

date of departure. Kovalev was given oral notice of the contents of the Voluntary

Departure Notice in English only. Kovalev did not leave the United States on July 7,

1993. Accordingly, on September 14, 1993, the INS issued a Warrant of Deportation.

On April 11, 1994, the INS sent Kovalev a “bag and baggage” letter telling him to report

for deportation on a scheduled date. Kovalev did not report to the INS Deportation Unit

on the date scheduled as instructed.

       On March 31, 1998, Kovalev applied to reopen the deportation proceedings and

for suspension of deportation under former INA § 244(a) and Section 203 of the

Nicaraguan Adjustment and Central American Relief Act of 1997 (“NACARA”). The

INS opposed the motion, urging the IJ to deny it on discretionary grounds. On August 31,

1998, the IJ denied the motion to reopen as a matter of discretion, because Kovalev

previously had failed to depart voluntarily as promised. App. 192.

       On September 23, 1999, the Board of Immigration Appeals dismissed Kovalev’s

appeal, holding that the IJ had not abused his discretion. The Board explained: “While

section 309(g) of [the Illegal Immigration Reform and Immigrant Responsibility Act] as

amended by section 203(c) of NACARA, provides that motions to reopen filed by certain

aliens, such as respondent, are exempt from time and number limitations, it does not

exempt them from showing that they merit reopening as a matter of discretion.” App.

203. Kovalev did not seek review of the BIA’s order in a court of appeals.



                                              3
         On M arch 27, 2001, Kovalev’s adult daughter became a naturalized citizen. In

April or May 2001, she submitted a Form I-130 Petition for Alien Relative as a

prerequisite for Kovalev to adjust his status to that of a lawful permanent resident. At the

same time Kovalev submitted a Form I-485 application to adjust his status. On June 12,

2002, during his interview pursuant to this application, the INS learned of the outstanding

deportation order and took Kovalev into custody.

         Less than a month later, on July 9, 2002, Kovalev, through counsel, filed a petition

for writ of habeas corpus pursuant to 28 U.S.C. § 2241 in United States District Court for

the Eastern District of Pennsylvania. Kovalev sought release from custody pending the

BIA’s consideration of a motion to reopen to consider his application for adjustment of

status. He also asked that the March 1993 deportation order be invalidated. While the

habeas petition was pending the INS received travel documents for Kovalev from the

Russian Consulate.1 In an order entered on September 30, 2002, the District Court denied

the habeas petition. Kovalev then filed this appeal.

         We will affirm. Kovalev is in custody pursuant to a final order of deportation. In

order to prevail in federal habeas Kovalev must show that the final order of deportation is

“in violation of the Constitution or laws ... of the United States.” 28 U.S.C. § 2241(c)(3).

It is not enough to show abuse of discretion and thus a federal habeas petition is not an

ideal vehicle for challenging a discretionary decision of the Board of Immigration


   1
       The travel documents expired on October 1, 2002.

                                               4
Appeals. Cf. Immigration & Naturalization Serv. v. St. Cyr, 533 U.S. 289, 314 n.38

(2001) (“[T]he scope of review on habeas is considerably more limited than on

[Administrative Procedures Act]-style review.”). For a full consideration of his issues

Kovalev should have petitioned for review of the BIA’s September 23, 1999 decision.

Any petition for review submitted now would be untimely, unfortunately. See Malvoisin

v. Immigration & Naturalization Serv., 268 F.3d 74, 75 (2d Cir. 2001) (thirty day appeal

period of permanent rules, 8 U.S.C. § 1252(b)(1), is mandatory and jurisdictional).

       We have carefully considered the record, and Kovalev’s arguments on appeal in

the context of whether the denial of discretionary relief here involved a violation of

federal law or the Constitution. See Chmakov v. Blackman, 266 F.3d 210, 214 (3d Cir.

2001) (federal courts retain section 2241 habeas jurisdiction over petitions from criminal

and non-criminal aliens alike). See also Liu v. Immigration & Naturalization Serv., 293

F.3d 36, 40 (2d Cir. 2002) (same). Kovalev otherwise does not qualify for habeas relief.

Kovalev has argued that the M arch 1993 order of deportation violates 8 U.S.C. §

1252b(e)(2) (repealed) because he did not receive an adequate warning in Russian about

the consequences of failing to depart voluntarily. He also has argued that NACARA

mandates discretionary relief even though he failed to voluntarily depart. We conclude,

however, that these arguments, although cognizable in federal habeas, do not provide a

basis for habeas relief.




                                             5
       The argument that section 1252b(e)(2)(B) was violated when Kovalev did not

receive the proper warnings in Russian concerning the consequences of failing to

voluntarily depart does not warrant habeas relief for three reasons. First, he did not raise

this claim before the IJ or the BIA when he filed his motion to reopen in 1998.

Exhaustion of administrative remedies is a prerequisite to habeas relief. Bradshaw v.

Carlson, 682 F.2d 1050, 1052 (3d Cir.1981) (per curiam ); Yi v. Maugans, 24 F.3d 500,

503-04 (3d Cir. 1994) (addressing former 8 U.S.C. § 1105a(c)). When he applied to

reopen deportation proceedings and for suspension of deportation Kovalev should have

presented his argument that, because of a language problem, he did not understand the

Voluntary Departure Notice.

       Second, section 1252b(e)(2) is irrelevant to the issue presented by the habeas

petition.2 Under former section 1252b(e), any alien allowed to depart voluntarily who

remained in the United States after the scheduled date of departure, other than because of

exceptional circumstances, was not eligible for, among other things, suspension of

deportation under INA § 1254 or adjustment or change of status under INA §§ 1255,

1258, or 1259 for a period of five years after the scheduled date of departure. See

generally Mardones v. McElroy, 197 F.3d 619, 622-23 & n.1 (2d Cir. 1999). However, if

proper warnings were not given in a language the alien understood, he or she would not


   2
    The pertinent subparagraphs of former section 1252b(e)(2) are set forth on page 14 of
the District Court’s Memorandum. Because we write only for the parties we will not
repeat the statute here.

                                              6
be prevented from seeking these forms of relief during the five year period. The statute is

irrelevant to Kovalev’s request for habeas relief because, even if there was a failure to

give notice in a language Kovalev understood, the statute would not mandate, for

example, adjustment of status or suspension of deportation. It would merely, if

applicable, invalidate the five-year bar with respect to applying for adjustment of status or

suspension of deportation.3

       Third, the statute requires only that notice be provided in a language the alien

understands. Kovalev’s assertion at this late stage in the proceedings that he needed a

translation into Russian is not convincing enough to warrant habeas relief. The District

Court found:

       Given that Kovalev has lived in the United States since 1989, had two
       separate, privately retained, lawyers during his prior INS proceedings, and
       signed his name several times to documents acknowledging his waiver of
       certain rights, the Court cannot accept Kovalev’s arguments that he did not
       have any knowledge that one consequence of his ignoring the prior
       voluntary deportation orders was to put his continued presence in this
       country at risk. Further, Kovalev’s testimony, that his prior lawyers kept
       reassuring him that they would take care of things, does not provide any
       legally justifiable reason for this Court to find that Kovalev himself did not
       understand what was going on before the INS, or that he was completely
       unaware of the consequences of his ignoring the deportation orders.

(District Court Memorandum, at ¶ 41.) We agree and find no error in this conclusion by


   3
    Kovalev has indicated in his reply brief that a motion to reopen is pending in New
York Immigration Court, apparently concerning an application to adjust status. Habeas
relief is unavailable with respect to the pending motion to reopen because Kovalev has
not yet exhausted administrative remedies. Bradshaw, 682 F.2d at 1052; Yi, 24 F.3d at
503-04.

                                              7
the District Court.

       With respect to Kovalev’s second claim, NACARA does not mandate relief; it

only made Kovalev eligible to apply for relief where he otherwise would have been

ineligible. Prior to 1996, under section 244(a) of the Immigration and Nationality Act,

the Attorney General could grant suspension of deportation, assuming the good moral

character and hardship requirements were met, to an alien who had been physically

present in the United States for a continuous period of not less than seven years

immediately preceding the date of a suspension of deportation application. 28 U.S.C. §

1254(a)(1) (repealed). The Illegal Immigration Reform and Immigrant Responsibility Act

(“IIRIRA”) created a “stop-time” rule, stopping the clock upon the initiation of

deportation proceedings. See 8 U.S.C. § 1101 note (IIRIRA § 309(c)(5)); see generally

Pinho v. Immigration & Naturalization Serv., 249 F.3d 183, 188 (3d Cir. 2001).

Previously, aliens involved in deportation proceedings that were significantly delayed

could accumulate sufficient continuous physical presence to qualify for suspension of

deportation by applying for suspension of deportation well after deportation proceedings

were initiated. See Useinovic v. Immigration & Naturalization Serv., 313 F.3d 1025,

1033-34 (7 th Cir. 2002).

       The Nicaraguan Adjustment and Central American Relief Act, Pub.L. No. 105-

100, tit. II, 111 Stat. 2160, §§ 201 et seq. (1997), allowed Nicaraguans and Cubans to

adjust their immigration status automatically. It also exempted certain other aliens, based



                                             8
on their national origin, from the new stop-time rule. Pursuant to section 203(a) of

NACARA, the new stop-time rule, for a period of time, did not apply to nationals of

several countries, including the Soviet Union, Russia, and any republic of the former

Soviet Union. See Appiah v. Immigration & Naturalization Serv., 202 F.3d 704, 708 (4 th

Cir. 2000) (citing NACARA § 203(a), 111 Stat. at 2196-97).

       Kovalev was prima facie eligible to file a motion to reopen because he comes from

a NACARA-specified country, he entered the United States before December 31, 1990,

and he applied for asylum before December 31, 1991. Useinovic, 313 F.3d at 1034

(citing NACARA § 203(a)(1); 8 C.F.R. § 3.43(d)(4)). NACARA allowed Kovalev to file

one “timely” motion to reopen his deportation proceedings, see Useinovic, 313 F.3d at

1034-35 n.9 (discussing NACARA’s special provision for allowing motion to reopen

notwithstanding 90-day time limit of 8 C.F.R. § 3.23), but it did not guarantee a favorable

exercise of discretion under INA § 244(a). NACARA did not affect how discretion was

to be exercised by the Immigration Judge in deciding whether a motion to reopen and

application for suspension of deportation should be granted. Accordingly, NACARA was

not violated here because Kovalev was allowed to file his motion to reopen and

application for suspension of deportation, and his request for relief from the final order of

deportation was duly considered by an immigration judge and the Board of Immigration

Appeals.




                                              9
       We find no other errors in this case warranting habeas relief. Aliens are entitled to

substantive due process. See Chi Thon Ngo v. Immigration & Naturalization Serv., 192

F.3d 390, 396 (3d Cir. 1999). The decision of the Immigration Judge to deny the motion

to reopen and application for suspension of deportation as a matter of discretion was not

arbitrary and capricious (Appellant’s Brief, at 19), and thus not a violation of substantive

due process. A substantive due process violation is established only if the government's

actions are irrational or motivated by constitutionally impermissible factors. See Sameric

Corp. of Delaware, Inc. v. City of Philadelphia, 142 F.3d 582, 590-91 (3d Cir. 1998).

       The IJ refused to “condone” Kovalev’s failure to depart voluntarily as promised,

and Kovalev has pointed to no authority to indicate that the IJ’s emphasis on this factor

was constitutionally impermissible. Only exceptional circumstances beyond the control

of an alien excuse the failure to depart voluntarily. Mardones v. McElroy, 197 F.3d at

624 (“An alien ... allowed to depart the United States voluntarily was required to do so

unless it was impossible for physical reasons, such as serious illness, or by reason of a

moral imperative, such as the death of an immediate relative.”) The record does not show

exceptional circumstances; it shows an attempt to delay departure in an effort to remain in

the country until such time as a visa might become available. See Fan Wan Keung v.

Immigration & Naturalization Serv., 434 F.2d 301 (2d Cir. 1970) (discussing improper

manipulation of privilege of voluntary departure). The IJ’s decision comported with

applicable law and was not arbitrary and capricious.



                                             10
          Finally, we agree with the District Court that Kovalev’s post-deportation order

detention is lawful and that there is a significant likelihood that he will be removed in the

foreseeable future. See Zadvydas v. Davis, 533 U.S. 678, 701 (2001). His Russian

citizenship has been established and travel documents are obtainable. “Zadvydas does not

save an alien who fails to provide requested documentation to effectuate his removal.”

Pelich v. Immigration & Naturalization Serv., 329 F.3d 1057, 1060 (9 th Cir. 2003).

Furthermore, the issue whether Kovalev is entitled to a stay of deportation pending the

outcome of his motion to reopen to adjust his status is moot because there is no merit to

the habeas petition.4 The pending motion to reopen and application to adjust status are

not presently before the Court.

          We will affirm the order of the District Court dismissing the habeas petition.




                                             /s/ Anthony J. Scirica
                                             Chief Judge




   4
       Kovalev filed a motion to stay deportation in this Court, which we denied.
