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. e du/thir dc ir c uit_2002/362NOT 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order may be rescinded only upon a motion to reopen; we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 lackjurisdiction 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