2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-19-2010

Vitaliy Andreyev v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-4342

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DLD-079 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-4342

___________

VITALIY IVANOVICH ANDREYEV,

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

On Petition for Review of an Order

of the Board of Immigration Appeals

Agency No. A089-239-565

Immigration Judge: Andrew R. Arthur

____________________________________

Submitted for Possible Summary Action 

Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

Before: FUENTES, JORDAN and HARDIMAN, Circuit Judges

(Opinion filed: January 19, 2010)

_________

OPINION

_________

PER CURIAM

Petitioner Vitaliy Ivanovich Andreyev seeks review of a final order of removal

issued by the Board of Immigration Appeals (“BIA”). The Government has moved to

summarily affirm the BIA’s decision. Because the appeal presents no substantial
2

question, we will grant the motion and deny Andreyev’s petition. 

I.

Andreyev is a native and citizen of Ukraine who entered the United States in 1996

as a non-immigrant visitor and remained in the United States after the expiration of his

visa. In March 2009, the Department of Homeland Security initiated removal

proceedings against Andreyev for remaining in the United States without authorization. 

See Immigration and Nationality Act (“INA”) § 237(a)(1)(B). Andreyev appeared before

an Immigration Judge, and elected to proceed pro se. After finding that Andreyev was

not eligible for any relief from removal, the Immigration Judge ordered him removed

from the United States to Ukraine. Andreyev appealed the Immigration Judge’s decision

to the BIA, arguing that he was deprived of due process because he was not given an

opportunity to argue his eligibility for discretionary relief from removal, including

asylum. The BIA conducted a de novo review and affirmed the Immigration Judge’s

decision, finding that Andreyev had been provided with a full and fair hearing, and that

he had failed to provide a factual basis to support a claim for asylum, withholding of

removal, or cancellation of removal. 

Still proceeding pro se, Andreyev filed a motion to stay removal proceedings in

this Court, arguing chiefly that his removal proceeding was fundamentally unfair because

he was deprived of his right to be referred to an asylum officer for a “reasonable fear

determination” pursuant to 8 C.F.R. § 1208.31. Andreyev also argues that he was not
 Although the Government filed a motion seeking what it called “summary 1

affirmance” of the BIA’s decision, the Court understands the Government actually to be

seeking a summary denial of Andreyev’s petition for review. 

3

informed of his potential eligibility for asylum, withholding of removal, or cancellation of

removal, and that the Immigration Judge and BIA failed to evaluate these claims on the

merits. The Government has moved for summary affirmance of the BIA’s decision.1

Andreyev has filed no opposition. 

II.

We have jurisdiction to review a final order of removal under INA § 242(a). 

Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir. 2006). Because the BIA issued its

own opinion, we review its decision rather than that of the Immigration Judge. See Li v.

Att’y Gen., 400 F.3d 157, 162 (3d Cir. 2005). However, we review the decision of the

Immigration Judge to the extent that the BIA defers to or adopts the Immigration Judge’s

reasoning. See Chavarria, 446 F.3d at 515. We review factual determinations of the BIA

under the deferential substantial evidence standard. Id. Under the substantial evidence

standard, the BIA’s findings “must be upheld unless the evidence not only supports a

contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477, 484 (3d Cir.

2001). Our review over the BIA’s conclusions of law is plenary. Romanishyn v. Att’y

Gen., 455 F.3d 175, 185 (3d Cir. 2006). 

III.

Andreyev argues that he was deprived of a fair opportunity to present his claims
4

for immigration relief. In the immigration context, due process entitles an alien to “a full

and fair hearing and a reasonable opportunity to present evidence.” Romanishyn, 455

F.3d at 185. The record reveals no violation of due process. See Khan v. Att’y Gen., 448

F.3d 226, 236 (3d Cir. 2006). Andreyev was informed by the Immigration Judge of his

right to retain counsel and was provided with a list of low cost and pro-bono legal

services providers. A.R. 61-62. The Immigration Judge offered Andreyev a continuance

in order to retain counsel, and Andreyev elected to proceed pro se. A.R. 62. Andreyev’s

rights of evidence and appeal were explained to him, and he was given the opportunity to

address the court. A.R. 62, 65. The Immigration Judge also questioned Andreyev to

ensure that he had no viable claims for relief. A.R. 64-65. For these reasons, we reject

Andreyev’s due process claim. 

Andreyev next argues that pursuant to 8 C.F.R. §§ 1208.31 and 1238.1, he should

have been referred to an asylum officer for a “reasonable fear determination” to establish

his eligibility for asylum. This requirement is applicable only to individuals who have

been ordered removed for committing an aggravated felony pursuant to INA § 238(b). 

Andreyev was charged with removability under INA § 237(a)(1)(B) for overstaying his

visa. Nothing in the record suggests that Andreyev was ordered removed in connection

with a felony conviction, or that he is otherwise entitled to a “reasonable fear

determination” pursuant to 8 C.F.R. § 1208.31. Furthermore, because Andreyev was

placed in removal proceedings before he filed any applications for immigation relief, the
5

proper official to adjudicate any applications would have been an immigration judge and

not an asylum officer. See 8 C.F.R. §§ 208.2(b), 208.4. The Immigration Judge in this

case did in fact consider whether Andreyev had any basis for immigration relief, and

found that he did not. The BIA also considered these claims, and made a de novo

determination that Andreyev had failed to provide a proper factual basis for a claim for

asylum, withholding of removal, protection under the Convention Against Torture, or

cancellation of removal. Nothing in the record suggests that the BIA erred in reaching its

conclusion. 

In his declaration on appeal to the BIA, Andreyev stated that he came to the United

States in 1996 due to mounting concerns about mass unemployment, poverty, and

corruption in his native Ukraine. A.R. 10-11. He also stated that he became afraid after

two friends of his were beaten by law enforcement for failure to pay their debts. A.R. 10. 

Andreyev has been living and working in the United States for over ten years, and

contends that if he is removed to the Ukraine he will be homeless because he has no

money, no job, and no family there, a fate he considers tantamount to suicide. 

Andreyev’s circumstances, although regrettable, do not constitute a basis for asylum or

withholding of removal, which require a showing of persecution on account of

membership in a particular social group. See Matter of Acosta, 19 I. & N. Dec 211, 233-

34 (BIA 1985); Senathirajah v. INS, 157 F.3d 210, 215 (3d Cir. 1998). Poverty and

homelessness, while “appealing to sympathy and compassion,” are “far too vague and all
 At the hearing before the Immigration Judge, Andreyev referred to his companion as 2

his common law wife. A.R. 64. Andreyev did not argue to the BIA that he had satisfied

any state’s legal requirements for establishing a common law marriage, however. See

6

encompassing to be characteristics that set the perimeters for a protected group within the

scope of the Immigration and Naturalization Act.” Escobar v. Gonzales, 417 F.3d 363,

368 (3d Cir. 2005); see also Lukwago v. Ashcroft, 329 F.3d 157, 172 (3d Cir. 2003). The

BIA reasonably concluded from the evidentiary record that Andreyev failed to establish

membership in a particular social group, and was therefore ineligible for asylum. See 8

U.S.C. § 1101(42)(A); Lukwago, 329 F.3d at 170 (denying asylum where alien could not

demonstrate that he was targeted because of membership in a particular social group). 

Likewise, Andreyev’s anticipated poverty is insufficient to establish eligibility for

withholding of removal under the Convention Against Torture. See 8 C.F.R. §

208.18(a)(1); see also Pierre v. Att’y Gen., 528 F.3d 180, 189 (3d Cir. 2008) (en banc)

(holding that suffering attributable to the “unfortunate but unintended consequences of

the poor conditions” in the country of removal is not “torture” under CAT). The BIA also

correctly found that Andreyev failed to demonstrate that he had a qualifying United States

citizen or lawful permanent resident relative to establish eligibility for cancellation of

removal. See 8 U.S.C. § 1229b(b). Andreyev’s companion possesses a green card, but he

is not legally married to her. To establish eligibility for cancellation of removal through a

spouse, the marriage must be legally valid. See So Chun Chung v. INS, 602 F.2d 608,

610 (3d Cir. 1979). There is nothing in the record to suggest that Andreyev has any other 2
Bejar v. Ashcroft, 324 F.3d 127, 132 (3d Cir. 2003) (noting that the consequences of

nonexhaustion are jurisdictional). 

7

qualifying relatives.

 Although we appreciate Andreyev’s strong desire to remain in the United States,

the BIA committed no legal error in reaching its conclusion that Andreyev is not eligible

for immigration relief. Accordingly, we will grant the Government’s motion for summary

action and deny Andreyev’s petition for review. See Third Circuit LAR 27.4; I. O. P.

10.6. There is no substantial question on appeal. See Nken v. Holder, ____ U.S.____,

____, 129 S.Ct. 1749, 1761 (2009).