2005 Decisions

Opinions of the United

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Precedential or Non-Precedential: Precedential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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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 antiSemitism, 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
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.

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) appeals the District Court’s order granting habeas corpus 1

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
 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. 

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. 
 3.

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

Any departure from the United States, including the deportation

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 Cir. 1998). th

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
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. 

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). An 4

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 Cir. 2005). After th

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
Sidikhouya v. Gonzales, 407 F.3d 950 (10 Cir. 2005), also rejected th

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 Cir. 1990) (district court could dismiss case without prejudice th

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.