                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-3-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1270




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                                                      NOT PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                           No. 05-1270


                    LARISSA NADBITOVA;
                     SERGUEI NADBITOV,
                                  Petitioners

                                 v.

                   ALBERTO R. GONZALES,
               Attorney General of the United States
                                                Respondent

       (*Substituted pursuant to Rule 43(c), Fed. R. App. P.)


            On Petition for Review of an Order of the
                 Board of Immigration Appeals
            (BIA Nos. A95-369-666 & A95-369-667)


         Submitted Pursuant to Third Circuit LAR 34.1(a)
                       February 14, 2006

Before: SCIRICA, Chief Judge, BARRY and FISHER, Circuit Judges

                     (Filed: March 3, 2006 )



                   OPINION OF THE COURT
SCIRICA, Chief Judge.

       Larissa and Serguei Nadbitova petition for review of an order of the Board of

Immigration Appeals affirming the immigration judge’s order of removal. We will deny

the petition and affirm the order of the BIA.

                                                I.

       Because we write only for the benefit of the parties, our recitation of the facts will

be abbreviated.

       The Nadbitovas, husband and wife, are Russian natives and citizens, who were

admitted as nonimmigrant visitors to the United States at New York City in August 2000,

authorized to stay until November 28, 2000. They overstayed their three-month

authorization, and Larissa Nadbitova filed for asylum and for withholding of removal, or,

alternatively, for voluntary departure. Her husband was a derivative of her claims. Their

application was filed either in November or December 2001, a subject of debate. They

were charged with being removable pursuant to 8 U.S.C. § 1227(a)(1)(B).

       At their first hearing in June 2002, the IJ ordered briefing on the timeliness of their

asylum application because it appeared the Nadbitovas failed to file within one year of

their arrival, as required by 8 U.S.C. § 1158(a)(2)(B). At the same hearing, the IJ advised

the Nadbitovas that no public documents from Russia would be admitted into evidence

unless certified under 8 C.F.R. § 287.6. The Nadbitovas encountered problems getting

certain documents from Russia, and their transition to a new attorney caused other



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problems because the new attorney failed to notify the court and the former attorney of

the Nadbitovas’ decision to change attorneys.

      Both their new attorney and their former attorney showed up at the next hearing in

July 2003, and the Nadbitovas sorted out their representation. The new attorney told the

court he was ready to proceed. The Nadbitovas had obtained the documents—“citizen

internal passports,” App. 77—but the documents were not certified, and the IJ excluded

them. The Nadbitovas then withdrew their application at the hearing because, as they

now contend, they believed that without the documents their application would likely fail.

The IJ found they qualified for voluntary departure, but the Nadbitovas then stated on the

record that they had no intention of leaving the country. Accordingly, the IJ denied

voluntary departure. Because the Nadbitovas had withdrawn with prejudice their

application for asylum and for withholding of removal, the IJ entered an order of removal.

      The Nadbitovas raise several issues in their petition, contending the IJ and BIA

deprived them of due process of law under the Fifth Amendment.

      We have jurisdiction under 8 U.S.C. § 1252(a)(1), as amended by the REAL ID

Act of 2005, § 106, Pub. L. No. 109-13, Div. B., 119 Stat. 231.

                                            II.

      Because the BIA issued an opinion on the merits, we review the BIA’s rather than

the IJ’s decision. Li v. Attorney Gen., 400 F.3d 157, 162 (3d Cir. 2005). We review de

novo whether the Nadbitovas’ procedural due process rights were violated. Bonhometre

v. Gonzales, 414 F.3d 442, 446 (3d Cir. 2005) (citing Abdulrahman v. Ashcroft, 330 F.3d

                                            3
587, 596–97 (3d Cir. 2003)). To prevail on a due process challenge to the BIA’s order,

the Nadbitovas must make an initial showing of substantial prejudice. Id. at 448 (citing

DeZavala v. Ashcroft, 385 F.3d 879, 883 (5th Cir. 2004)). No procedural due process

claim can succeed unless the Nadbitovas show they were eligible for the relief they

sought. Id.

       First, the Nadbitovas contend the IJ denied their new attorney a continuance to

prepare. The BIA accurately described the record, in which it appears the new attorney

might have requested a continuance in advance of the hearing, but he withdrew that

request on the day of the hearing. Also at the hearing, the IJ gave the new attorney as

much time as he needed to confer with the former attorney, who was also present. After

this off the record consultation, the new attorney told the IJ he was ready to proceed.

There is no due process violation here.

       Second, the Nabditovas claim a due process violation when the IJ denied their

attorney’s request for an adjournment to counsel them about voluntary departure. But

there is no protected liberty interest in the discretionary relief of voluntary departure, nor

is there a protected interest in even being considered for the discretionary relief. See, e.g.,

United States v. Torres, 383 F.3d 92, 104–06 (3d Cir. 2004). It follows that the IJ did not

violate their due process right to counsel when the IJ denied the request for an

adjournment. In any event, there was no substantial prejudice. The IJ fully explained

voluntary departure, on the record, and the Nadbitovas stated they understood the



                                               4
explanation. Their attorney neither objected to the IJ’s explanation nor availed himself of

the opportunity to examine the Nadbitovas further.

       Third, the Nadbitovas seek review of the IJ’s refusal to admit their passports1 into

evidence because the documents were not certified in accordance with 8 C.F.R. § 287.6,

which essentially requires consular certification. Reading § 287.6 as though it provided

the only means of authenticating records before an immigration judge was an error of law.

Gui Cun Liu v. Ashcroft, 372 F.3d 529, 532–33 (3d Cir. 2004) (citing Khan v. INS, 237

F.3d 1143 (9th Cir. 2001)). But the Nadbitovas were not prejudiced. The BIA properly

found no indication that these documents would satisfy the type of corroborating evidence

required for a successful asylum and withholding application in this case, where the

Nadbitovas had been given one year to brief the key issue of the timeliness of their

application but had failed to do so by the time of the hearing. The passports would only

have corroborated that they were from the Republic of Kalmykiya, which is part of

Russia. But their claim for persecution was based on their religion, Baptist. Moreover,

the Nadbitovas were free to testify as to their Kalmyk nationality—testimony requires no

authentication—but failed to do so. We find no evidence that their persecution claim




   1
   There is no evidence on the record that the documents the Nadbitovas sought from
Russia were anything other than their “citizen internal passports.” App. 77.

                                             5
hinged on the admission of these passports.2 Accordingly, there is no substantial

prejudice.

       Fourth, the Nadbitovas seek review of the IJ’s decision to allow Larissa Nadbitova

to withdraw her asylum application (from which Serguei Nadbitova was derivative) with

prejudice, alleging the IJ did not ascertain if the withdrawal was voluntary. Their lawyer

told the IJ that Mrs. Nadbitova wished to withdraw her application. The IJ then put Mrs.

Nadbitova on the witness stand. As the BIA noted, the IJ explained to Mrs. Nadbitova

the consequences of this withdrawal fully and questioned her extensively. She stated that

she understood the explanation. When the judge asked her if she wished to withdraw her

application for political asylum and for withholding of removal, she responded “Yes.”

App. 87. Finally, their attorney neither objected to the IJ’s explanation nor availed

himself of the opportunity to examine his clients further. We see no error.

       Fifth, the Nadbitovas contend they were “wrongfully denied voluntary departure”

by the IJ, Petitioners’ Br. 12, violating due process. Initially, there is a question of

jurisdiction. As the government correctly argues, before the REAL ID Act, we lacked

jurisdiction to review decisions of the BIA or an IJ denying voluntary departure. 8 U.S.C.

§ 1229c(f) (“No court shall have jurisdiction over an appeal from denial of a request for


   2
    In Gui Cun Liu v. Ashcroft, we held the IJ’s failure to admit certain documents
influenced the IJ’s ensuing credibility determination, and we remanded. 372 F.3d 529,
534 (3d Cir. 2004) (“[R]emand is appropriate where, as here, we have made a legal
determination (e.g., regarding admissibility of evidence) that fundamentally upsets the
balancing of facts and evidence upon which an agency’s decision is based.”). No such
fundamental unbalancing is present here.

                                               6
an order of voluntary departure . . . .”); § 1252(a)(2)(B)(i) (“Notwithstanding any other

provision of law . . . no court shall have jurisdiction to review any judgment regarding the

granting of relief under section . . . 1229c . . . .”). The REAL ID Act made no change,

and discretionary determinations continue to fall outside the jurisdiction of the courts. §

1252(a)(2)(B)(ii).

       But we have jurisdiction over any due process claim because the REAL ID Act

allows jurisdiction over constitutional claims. § 1252(a)(2)(D) (stating that nothing in the

Act “which limits or eliminates judicial review, shall be construed as precluding review

of constitutional claims”). To the extent the Nadbitovas assert a constitutional violation,

we have jurisdiction.

       But their claim nonetheless fails. As noted, there is no protected liberty interest in

voluntary departure or even in being considered for voluntary departure. See, e.g.,

Torres, 383 F.3d at 104–06. Even assuming there were such an interest, after the

Nadbitovas were found to qualify for voluntary departure they insisted on preserving their

right to appeal. The government immediately moved to reopen the proceedings,

contending their preservation of appeal belied the Nadbitovas’ statement that they would

voluntarily leave the United States. The IJ questioned them on the record, and the

Nadbitovas insisted that they did not intend to leave the United States, and instead stated

that they wanted to stay in the United States indefinitely to raise their children.

Accordingly, the BIA did not commit constitutional error in affirming the IJ’s rescission

of the prior grant of voluntary departure when the underlying factual basis for it—that the

                                              7
Nadbitovas would leave voluntarily—was eroded. There was no violation of their

procedural due process rights.

                                          III.

      For the foregoing reasons, we will deny the petition for review and affirm the

order of the BIA.




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