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### No. 02-3394

SERGE Y EREMENKO,

Petitioner

v. JOHN ASHC ROFT , Attorney Generalof

the United States, Respondent

On Appeal from an Order entered before The Boa rd of I mmigrat ion Appea

ls (No. A 79-142-046)

Submitted Under Third Circuit LAR 34.1(a)

June 27, 2003 Before: SLOVI

TER, AMBRO, Circuit Judges , and TUCKER*, Dist rict J udge (Filed: September 23, 2003)

OPINION

*Honorable Petrese B. Tucker, United States District Court Judge f or the Eastern District of Pennsylvania, sitting by designation.1 Articl e 3 of the Conventi on Against Tort ure and Other Crue l, I nhuman or Degrading Treatment of

Punishment, 1465 U.N.T.S. 85, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, a t 19 7, U .N. D oc. A /39 /51 (19 84) ; 23 I.L.M . 102 7 (1 984 ). 2 AMBRO, Circu it J udge I. Background Sergey Eremenko is a native and citizen of Russia. On October 11, 2001, the I NS determined that Eremenko was wanted on an outstanding Canadian immigration warrant and that he had no lawful immigration status in the United States. The I mmigration and Naturalization Service (“INS”)issued a notice to appear, charging him as removable as an alien present in the United States without having been admitted or paroled and without proper immigr ation documents, in violation of § 212 of the Immigration and Na tionality Act (“I

NA”), 8 U.S.C. § 1182. In mid-January

2002, the INS appointed pro bono counsel for Eremenko. Both appeared before an Immig

ration Judge (“IJ”) on Fe

bruary 4, 2002. The

re Eremenko conceded dep ort abi li ty an d ap pl ied for vol unt ary d epa rtu re u nde r 8 U .S .C . § 1 229 c, IN A § 2 40B . Th e IJ granted Eremen

ko volunta

ry departu re until Ma

rch 6, 20 02, with a

n altern ative re

moval ord

er to Russia. Eremenko waived his right to appeal the I J’s decision to the Board of Immigra tion Appeals (“BI

A”). Because he was una ble to procure travel documentation and leave the U nited States by March 6, the volunt

ary departu re orde r becam e a fina l order o f remova

l. But on March 18, 2002, Eremenko filed a pro se moti on req uesti ng that the pr oceedi ngs before the IJ be reope

ned so that he might apply for protection from removal under the Convention Against Torture (“CAT”). 1 The IJ denied that motion on March 21, 2002, stating that Eremenko “has failed to set forth any evidence whatsoever to show that he would be tortured3

were he to return to Russia”and that “

he has se t forth no new facts which w ould war rant a reopen ing.” E remenk o appe aled t hat de nial t o the BIA ( appare ntly again actin g pro se ) on April 18, 2002. On May

3, 2002, he

filed a se cond motion to reope

n the proc eeding s with the I J, this time through counsel. The I J denied that motion on May 29, 2002, finding that she lacked ju ris di cti on t o co nsi der th e se con d m ot io n t o re ope n as ju ris di cti on h ad v est ed w it h t he B IA when Eremenko filed his appeal of the denial of his first motion to reopen. On July 13, 2002, E

remenko filed the brief in h is appea l from the denial of his first motion with the BIA, arg uing he had properly

raised a claim for protection under CAT and thus the I J had erred in deny

ing the m otion. He also filed documen

tary evidenc e in suppor

t of his appeal. The BI

A dismissed Eremenko’s appeal on August 9, 2002. This petition for review followed. II. Discussion We have jurisdiction to consider this petition for review of the BI A’s final order under section 242(a) of the IN

A, 8 U.S.C. § 1252(a). Our standard of review is abuse of disc retion. Obianuju Ezeagwuna v. Ashcroft , 301 F.3d 116, 130 (3d Cir. 2002). Upon our review of the brief s and t he reco rd, we h old t hat th e BIA did n ot abu se its discr etion in den ying peti tion er's motion to reopen and Eremenko’s petition for review is hereby dismissed. The first question that we must consider concerns the scope of our review. The Government argues that only the IJ’s dismissal of the first motion to reopen is properly before us because Eremenk o did not file an app eal with t he BI A from the

dismissal o f the sec ond motion t o reopen. As a result, he has, the Government conte nds, failed to exhaust his administrative remedies.2 8 C.F.R. § 3. 23(b)(3) has sinc e been moved to 8 C.F. R. § 1003.23(b) (3), as a res ult of

th e e na ct men t o f the Home la nd S ec ur it y Act of 200 2, Pub . L .1 07- 296 , t it . I V, su bt it s. D, E, F , 116 Sta t. 21 35, 2 192 (N ov. 2 5, 20 02) (as a me nde d). 4 We disag ree. We d

o not revi ew the decisions of the I J unless the B IA e

xpressly adopts them. Abdulai v. Ashcroft , 239 F.3d 542 (3d Cir. 2001) (“[A]bsent special circumstances not present here, we review only decisions by the BI

A and not those by immigra tion judges.”). Instead, we revie

w the final order of the BI A. INA § 242(a), 8 U.S.C. § 1252(a) . Here, the final orde r of t he BI A con sider

ed whethe

r the second mot

ion to reop en wa s properly d

ismis sed. We see no reason why , in our review of the BI A’s final order, we may

not consider its holding that the second motion to reopen was properly dismissed. And, because the BI A has ruled on the IJ’s dismissal of the first motion to reopen, Eremenko has exhausted his administrative remedies. Alleyne v. I

NS , 879 F.2d 1177, 1182-84 (3d Cir. 1989) (holding that review of questions not raised to the BIA is bar

red). We consider next whether the BIA abused its discretion in denying Eremenko’s motions to reope n. The B IA he

ld that the IJ had c orrect

ly d enied the first motion to reope

n becau se it “was not accompanied by the requisite application for the requested relief or by any supporting document ation, asrequired by

8 C.F.R. § 3 .23(b)( 3).” Reg ulations p rovide th at “[a]ny

motion to reopen for the purpose of acting on an application for relief must be accompanied by the appropriate application for relief and a ll supporting documents.” 8 C.F.R. § 1003.23(b)(3). 2 Eremenko’s request to reopen the proceedings was not accompanied by an application for protect ion under CAT. Fur

ther, “[a ] motion to reopen pro ceeding s shall not b e gran ted unles s it appears to the Board that evidence sought to be offered is material and was not ava ilable and3 Th e H om elan d S ecu rity Ac t mo ved 8 C .F.R . § 3.2 to 8 C.F .R. § 100 3.2. 5 could not have been discovered or presented at the former hearing.” 8 C.F.R. § 1003.2. 3 Assuming that Eremenko had included with his first motion the information that he included with his second motion, he hasnot explained why the infor mation he present ed for the first tim

e to the BIA on appea

l could not have been discovered or presented a t the February

4, 2002 hearing. Accordingly , we hold that the BIA did not abuse its discre tion in denying Err

emenko’s first motion to reopen. The BIA concluded that the IJ correctly dismissed Eremenko’s second motion to reopen for two reasons. First, as the I J concluded, it lacked jurisdiction over the case because the filing of an appeal from the first motion to reopen vested jurisdiction with the BI A. Under 8 C.F.R. § 1003.23(b)(1), an IJ may

not reopen a case when “jurisdiction is vested with the Boa rd of Immigration Appeals.” B ecause Eremenko had filed an appe al from the first denial of the motion to reopen, the IJ lacked jurisdiction to consider a second motion to reopen. The BIA also noted tha

t, in the event the IJ had retained jurisdiction, she lacked jurisdiction over the second motion because of “the numerical limitation on such motions set forth at 8C.F.R. § 3. 23(b)(1 ).” Subject to cer tain exce ptions not r

elevant here, “ a party

may file only one motion to reconsider a nd one motion to reopen proceedings.” 8 C.F.R. § 1003.23. Because Eremenko had alre ady filed one motion to reope n, the BIA did not abuse its discretion in concluding that the second motion was barred by this regulation. Eremenk o points out

that the n umerica l limit on moti ons to reo

pen may be waived in cases where the petitioner has been de frauded by

an individual purporting to provide legal representation. Varela v. INS , 204 F.3d 1237, 1240 (9th Cir. 2000). He argues that the situation6

here -- where the first motion was filed “without the bene fit of legal counsel, with the help of a ‘jailhouse lawye

r,’ [and] after free legal counse l was appointed by the Appe llant by the Court” -- is compar able to f raud. The IJ, he

posits, ha

d an oblig ation, before ac cepting the motion, to inform the attorney tha

t Eremenko had filed a motion pro se so that the attorney mig

ht have an opportunity to advise Eremenko to withdra w that motion. While we agree that it is likely better practic e on the pa

rt of the I NS, in cas es wher

e an indiv idual is re present ed by appointed counsel, to inform counsel that a pro se motion hasbeen filed in orde r to give that coun sel an opp ortunity to withdraw the motion, we can hardly say that a fa

ilure to do so amounts to fraud. Finally , we must c onsider w hether E remenko ’s due pr

ocess ri ghts we

re viola ted beca use the BIA “improper

ly ‘rubber sta

mped’ approval of [the] immigration judge’s decision” and “failed to give c areful

and indivi dualized c onsidera tion to the instant ca se” by refusing to consider the docum

ents pre sented on

appeal. The BI

A refused to consid

er these document s because they

had not been submitted in connection with the first motion to reopen. While they had been submitted with the second motion to reopen, that motion had been denied on jurisdictional grounds and thus the documents had not been considered by the IJ. The BI

A was within its di scretion

to refus e to consi der those document s, as doing

so would be

effectively creating a rec ord on ap

peal. Asthe BI

A noted, its obliga

tion as an appella te body is to limit its review to the record “as it was constituted befor e the Immigration Judge.”So limiting its review doe s no t m ean th at t he B IA ru bbe r-s tam ped th e IJ ’s d eci si on, nor doe s i t i ndi cat e th at t he B IA fai led to pro vi de i ndi vi dua l co nsi der ati on o f Er eme nko ’s c lai m. Inde ed, th e fa ct t hat th e BIA found an additiona l reason justify ing the I J’s dismissal

of the second motion to dismiss demonstrates that, far from rubber stamping Er emenko’s appeal, the BI

A considered the7

particulars of Eremenko’s case bef ore concluding that affirmance was appropriate. We find no violation o f Ereme

nko’s due processrights.

* * * * * III. Conclusion For the reasons stated above, we dismiss Eremenko’s pe tition for review.

TO THE CLERK: Please file the foregoing Opinion.

By the Court,

/s/ Thomas L. Ambro Circu it J udge