2002 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-14-2002

Tsymbalenko v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 01-3564

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Recommended Citation

"Tsymbalenko v. Atty Gen USA" (2002). 2002 Decisions. Paper 362.

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 NOT PRECEDENTIAL 

 IN THE UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 No. 01-3564 

 ___________________ 

 YELENA TSYMBALENKO; 

 ALEKSEY TSYMBALENKO, Petitioners 

 

 v. 

 JOHN ASHCROFT, ATTORNEY GENERAL OF 

 THE UNITED STATES, Respondent 

 ____________________________________ 

 On Petition for Review of an Order of the 

 Board of Immigration Appeals 

 (Board No. A78726981) 

 _______________________________________ 

 Argued: April 26, 2002 

 Before: BECKER, Chief Judge, SCIRICA and RENDELL 

 Circuit Judges. 

 (Filed: June 14, 2002) 

TATIANA S. ARISTOVA, ESQUIRE (ARGUED) 

Law Offices of John J. Gallagher 

1760 Market St., Suite 1100 

Philadelphia, PA 19103 

Counsel for Petitioners 

ROBERT D. McCALLUM, JR., ESQUIRE 

Assistant Attorney General 

Civil Division 

TERRI J. SCADRON, ESQUIRE 

Senior Litigation Counsel 

Office of Immigration Litigation 

WILLIAM C. MINICK, ESQUIRE (ARGUED) 

ETHAN B. KANTER, ESQUIRE 

LYLE D. JENTZER, ESQUIRE 

United States Department of Justice 

Civil Division 

Office of Immigration Litigation 

1331 Pennsylvania Ave., NW, Suite 700S 

Washington, DC 20530 

 Transcribed by: Tracey J. Williams, CET 

 (Proceedings recorded by electronic sound recording; 

 transcript provided by AAERT-certified transcriber.) 

 _______________________ 

 BENCH OPINION 

 _______________________ 
BECKER, Chief Judge. 

 (The following is the bench opinion of the Court in 

 the above-captioned matter:) 

 THE HONORABLE JUDGE BECKER: I have conferred with 

 the panel, and the panel, having studied this matter, grants 

 the motion to dismiss the appeal for want of appellate 

 jurisdiction. We are satisfied that the jurisdiction of this 

 Court is squarely controlled by the plain text of Section 

 1249(a)(b)(5)(C), which provides that an in absentia removal 

 order may be rescinded only upon a motion to reopen; we 

 believe that we are also controlled by Marrero v. INS, 990 

 Fed.2d 772, Third Circuit, 1993, that a petition for review 

 an in absentia deportation order is not proper where the 

 alien had failed to file a motion to reopen the deportation 

 order. Now, we are aware that one has now been filed, but 

 that fact subsumes what is the animating spirit of both the 

 statute and Marrero case, that the petitioner must exhaust 

 administrative remedies; under these circumstances, 

 petitioner has not exhausted them. And we have no idea what 

 the Board will do: The Board may very well grant the motion 

 to reopen, and this Court has made some remarks on the record 

 that it has no objection if Ms. Aristova communicates to the 

 Board. 

 We are also satisfied that there would be no 

 difference, given the clear, unequivocal proof of notice 

 required for service, whatever the standard of review. We 

 are, should we reach the merits, concerned about the sloppy 

 manner in which the form was filled out by the Immigration 

 Judge. 

 At all events, we are satisfied that we lack 
 jurisdiction and, accordingly, the appeal will be dismissed. 

 The Clerk will arrange for a transcript of this bench 

 opinion, which will be a non-precedential opinion. 

 Judge Scirica, anything to add or do you concur? 

 THE HONORABLE JUDGE SCIRICA: I concur. 

 JUDGE BECKER: Judge Rendell? 

 THE HONORABLE JUDGE RENDELL: Yes, I concur as well. 

 JUDGE BECKER: Thank you very much. 

 (Bench opinion concluded.) 

 _______________________________ 

TO THE CLERK: 

 Please file the foregoing Bench Opinion. 

 BY THE COURT: 

 /s/ Edward R. Becker 

 Chief Judge