Romanishyn v. Atty Gen USA ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
7-20-2006
Romanishyn v. Atty Gen USA
Precedential or Non-Precedential: Precedential
Docket No. 05-3141
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 05-3141
__________
VASILIY OSTAPOVICH ROMANISHYN,
Petitioner,
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
__________
On Petition for Review of an Order of Removal of
the Board of Immigration Appeals
U.S. Department of Justice
Executive Office for Immigration Review
(BIA No. A71-346-048)
__________
Argued: Monday, May 15, 2006
___________
Before: McKEE and GARTH, Circuit Judges, and
LIFLAND,* District Judge
(Filed: July 20, 2006)
Craig R. Shagin, Esq. [Argued]
The Shagin Law Group LLC
300 N. 2 nd Street, 8 th Floor
Harrisburg, PA 17101
Attorney for Petitioner
Thomas A. Marino, Esq.
Daryl F. Bloom, Esq. [Argued]
United States Attorney’s Office
Middle District of Pennsylvania
228 Walnut Street, Suite 220
Harrisburg, Pennsylvania 17108
Attorney for Respondent
__________
OPINION OF THE COURT
*
The Honorable John C. Lifland, Senior District Judge,
United States District Court for the District of New Jersey,
sitting by designation.
GARTH, Circuit Judge:
Does the Immigration and Nationality Act (“INA”) allow
an alien who entered the country as a refugee, and subsequently
adjusted his status to become a lawful permanent resident
(“LPR”), to be placed in removal proceedings although the
Attorney General never terminated his refugee status pursuant
to 8 U.S.C. §1157(c)(4)? We conclude that it does.
Because we answer that question in the affirmative – and
because we conclude that the Immigration Judge (“IJ”) in this
case did not violate petitioner’s due process rights by limiting
the number of witnesses he could call to testify at his
immigration hearing – we deny Mr. Romanishyn’s petition for
review.
I.
Vasiliy Ostapovich Romanishyn was born in Ukraine on
July 14, 1984. On March 11, 1996, at the age of eleven, he
entered the United States with his family as a refugee pursuant
to 8 U.S.C. §1157. He adjusted his status to that of a lawful
permanent resident, or LPR, on June 26, 1997.
In 2003, Mr. Romanishyn was convicted twice for
burglary in violation of 18 P A. C ONS. S TAT. A NN. §3502(a). For
the first conviction, which occurred in the York County Court
of Common Pleas on July 1, 2003, he was sentenced to
-3-
incarceration and served for a period of 8-23 months. For the
second conviction, which occurred in the Cumberland County
Court of Common Pleas on August 26, 2003, he was sentenced
to incarceration and served for a period of 4-12 months.
As a result of his convictions, the INS initiated removal
proceedings against Mr. Romanishyn. The Notice to Appear,
issued on February 6, 2004, charged that Mr. Romanishyn was
subject to removal pursuant to 8 U.S.C. §§1227(a)(2)(A)(iii) (as
an alien who had been convicted of an aggravated felony) and
1227(a)(2)(A)(ii) (as an alien who had been convicted of two or
more crimes involving moral turpitude, not arising out of a
single scheme of criminal conduct).
In removal proceedings, Mr. Romanishyn claimed that he
feared he would be persecuted because he is a Baptist, if he
were sent back to Ukraine. He was not eligible to apply for
asylum because the offenses for which he had been convicted
were “aggravated felonies.” 8 U.S.C. §§1158(b)(2)(A)(ii) &
(b)(2)(B)(i). The IJ allowed him to submit an application for
withholding of removal pursuant to 8 U.S.C. §1231(b)(3)(A),
however, because he found that the felonies were not
“particularly serious crimes” under 8 U.S.C. §1231(b)(3)(B)(ii).1
1
“To be eligible for a grant of withholding of removal to
any country, an alien must show that his life or freedom would
be threatened in such a country on account of race, religion,
nationality, membership in a particular social group, or political
-4-
Mr. Romanishyn also submitted an application for relief under
the Convention Against Torture.
In his pre-hearing brief, Mr. Romanishyn argued that it
was error for him to be placed into removal proceedings in the
first place because, though he had acquired LPR status, he still
maintained his original “refugee” status as well, and the latter
status exempted him from removal. The IJ summarily rejected
that argument.
At a June 1, 2004 hearing, Mr. Romanishyn’s attorney
announced that he planned to call nine witnesses to testify at the
merits hearing on his client’s withholding of removal
application. This exchange ensued:
JUDGE: Obviously, we’re not going to have nine
witnesses, so you’re going to have to pick your best. We
don’t want any type of redundancy in testimony and I
opinion. 8 U.S.C. §1231(b)(3)(A). This statutory provision
requires him or her to demonstrate a clear probability of
persecution on one of these five grounds. An alien must
demonstrate that it is more likely than not he would be subject
to such persecution if returned to his native land. This is a more
stringent standard than that required to establish eligibility for
asylum.” Ilchuk v. Attorney General, 434 F.3d 618, 624 (3d Cir.
2006) (citations omitted) (emphasis added).
-5-
can’t imagine that nine witnesses are going to have
something different to say about the same thing.
COUNSEL: Well, they all have different experiences and
it’s --
JUDGE: Are these all going to be family members?
COUNSEL: No. Some are other Ukrainian Baptists who
have recently arrived in the United States and who
arrived earlier. Basically, to testify as to the conditions
and the social attitudes towards Baptists in the Ukraine
and what type of persecution would await Mr.
Romanishyn should he return.
JUDGE: What I’m going to require then is a list of these
witnesses and a[n] offer of proof as to their anticipated
testimony.
COUNSEL: Okay.
JUDGE: You can anticipate perhaps one or two of them
being permitted to testify. If you want to have all of
them standing by you can. If you want to have them
submit an affidavit you can do that, but just understand
up front we’re not going to have nine witnesses. So, you
pick your best and we’ll proceed from that point.
-6-
COUNSEL: Okay.
Ultimately, at Mr. Romanishyn’s June 30, 2004 merits hearing,
only one witness, his uncle, testified. However, Mr.
Romanishyn did submit statements from the other witnesses he
had wanted to call, and the IJ considered them.
In an opinion dated September 1, 2004, the IJ denied Mr.
Romanishyn’s application for withholding of removal for two
reasons. First, he found the documentary evidence Mr.
Romanishyn submitted, inadequate to fulfill his burden of
establishing a clear probability that, if returned to Ukraine, he
would be persecuted on account of his religion. Second, he
found that the evidence did not show that Mr. Romanishyn had
suffered past persecution, and so the regulatory presumption of
future persecution, 8 C.F.R. §208.16(b)(1), was not triggered.2
On appeal to the Board of Immigration Appeals (“BIA”),
Mr. Romanishyn (1) renewed his argument that though he had
acquired LPR status, he maintained his refugee status as well,
and thus was not removable. Additionally he argued that (2) the
IJ violated his due process rights when he limited to two the
number of witnesses he could call to testify, and (3) the
2
The IJ also denied Mr. Romanishyn’s claim under the
Convention Against Torture, holding that he had not established
that it was more likely than not that he would suffer torture if
returned to Ukraine.
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principles of res judicata should apply to the question of
whether he had suffered past persecution, since he had been
admitted to the United States as a refugee in 1996. The BIA
dismissed his appeal, holding that Mr. Romanishyn had asserted
no grounds for relief.
On April 5, 2005, Mr. Romanishyn challenged his final
order of removal by filing a petition for writ of habeas corpus
under 28 U.S.C. §2241 in the District Court for the Middle
District of Pennsylvania. The District Court granted a stay of
removal pending decision on the habeas petition.
On June 21, 2005, the District Court transferred the
habeas petition to this court pursuant to Section 106(c) of the
REAL ID Act. See Bonhometre v. Gonzales, 414 F.3d 442, 446
(3d Cir. 2005) (noting that pursuant to Section 106(c), “all
habeas petitions brought by aliens that were pending in the
district courts on the date the REAL ID Act became effective
(May 11, 2005) are to be converted to petitions for review and
transferred to the appropriate court of appeals”).
In his converted petition for review, Mr. Romanishyn
renews the arguments that he may not be removed because he
maintains his protective refugee status, and that the IJ violated
his due process rights by limiting to two the number of
witnesses he could call at his hearing.
II.
-8-
A.
The BIA exercised jurisdiction pursuant to 8 C.F.R.
§1003.1(b)(3). We exercise jurisdiction over this converted
petition for review pursuant to 8 U.S.C. §1252(a)(1). Our
jurisdiction extends only to constitutional claims and questions
of law. 8 U.S.C. §1252(a)(2)(D); Papageorgiou v. Gonzales,
413 F.3d 356, 358 (3d Cir. 2005). Whether an alien who
entered the country as a refugee and subsequently acquired LPR
status may be placed in removal proceedings even though his
refugee status was never terminated under 8 U.S.C. §1157(c)(4),
is a question of law. Whether the IJ violated the requirements
of due process when he limited the number of witnesses that Mr.
Romanishyn could call at the immigration hearing, is a
constitutional claim.3
B.
3
We reject the government’s contention that the court
lacks jurisdiction to resolve this second issue because the IJ’s
decision to limit the number of witnesses was discretionary.
See, e.g., Singh v. Gonzales, 432 F.3d 533, 537 (3d Cir. 2006)
(claim that petitioner’s right to due process was violated when
IJ limited him to examining just one of three witnesses he
sought to call at a hearing on a withholding of removal claim
was “constitutional in nature, and within our jurisdiction under
the REAL ID Act”).
-9-
We turn first to the primary question on this appeal:
Does the INA allow an alien who entered the country as a
refugee, and subsequently adjusted his status to become an LPR,
to be placed in removal proceedings although the Attorney
General never terminated his refugee status pursuant to 8 U.S.C.
§1157(c)(4)? We appear to be the first Court of Appeals to
address this question squarely. We review the “BIA's legal
decisions de novo, but will afford Chevron deference to the
BIA's reasonable interpretations of statutes which it is charged
with administering.” Francois v. Gonzales, 448 F.3d 645, 648
(3d Cir. 2006) (quotation and citation omitted).
Mr. Romanishyn argues that he may not be placed in
removal proceedings because refugee status protects a person
from removal, and he claims to maintain his refugee status
because it was not terminated pursuant to 8 U.S.C. §1157(c)(4),
and did not automatically terminate at the moment he adjusted
status to become an LPR. The government does not dispute that
Mr. Romanishyn’s refugee status was not terminated pursuant
to 8 U.S.C. §1157(c)(4), but argues that that status (and
whatever protection it may have provided from removal)
automatically terminated when he became an LPR. Mr.
Romanishyn, according to the government, may thus be placed
in removal proceedings.
In 2004, this court ordered the BIA to address the precise
question here at issue. Smriko v. Ashcroft, 387 F.3d 279 (3d Cir.
2004). In response, the BIA held in a 2005 opinion that,
-10-
contrary to Mr. Romanishyn’s argument, an alien whose refugee
status has not been terminated pursuant to 8 U.S.C. §1157(c)(4),
and who has acquired LPR status, may be removed.4 Under the
BIA’s analysis, this is so, not because the acquisition of LPR
status itself “extinguishes” or “terminates” refugee status.
Rather, it is so because refugee status never provided complete
exemption from removal to begin with, so whether or not
refugee status has terminated is not determinative of whether an
alien who entered the United States as a refugee may be
removed. In other words, the BIA held, a refugee does not have
complete protection or immunity from removal before he adjusts
to LPR status, so it does not follow, under the INA, that he
should have such protection or immunity after he becomes an
LPR.
The BIA’s reasoning in its opinion and its ultimate
conclusion are not unreasonable. Therefore, despite the fact that
Mr. Romanishyn marshals several arguments in favor of his
contrary interpretation of the INA, we must defer to the BIA’s
interpretation under the principles of Chevron U.S.A. Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
1.
4
The BIA issued its Smriko opinion after Mr.
Romanishyn filed his initial brief with our court, but before the
government filed its opposition brief. Mr. Romanishyn
addressed the 2005 Smriko opinion in his reply brief.
-11-
A refugee is defined by 8 U.S.C. §1101(a)(42) as
any person who is within the country of such person's
nationality . . . and who is persecuted or who has a
well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social
group, or political opinion.
The Attorney General may admit to the United States “any
refugee who is not firmly resettled in any foreign country, is
determined to be of special humanitarian concern to the United
States, and is admissible . . . as an immigrant.” 8 U.S.C.
§1157(c)(1); 8 C.F.R. §207.
The standard for determining whether a refugee is
“admissible as an immigrant” at the moment of his entry into
this country is significantly more lenient than the standard used
to determine whether a person who is seeking admission – but
who is not a refugee – is admissible. Specifically, many of the
bars to admission imposed on the latter group (non-refugees) by
8 U.S.C. §1182(a) are waived for refugees,5 and the government
5
The bars to admission for aliens (1) who are likely to
become public charges, (2) who enter the U.S. to work who
have not been granted labor certification, and (3) who lack
required entry documents, are waived for refugees. 8 U.S.C.
§1157(c)(3).
-12-
may in its discretion waive most other bars to admission,6
including the bar which excludes individuals who have
committed certain criminal offenses. 8 U.S.C. §1157(c)(3).
The Attorney General may terminate the refugee status of
an alien at any time if he determines that the person was not, in
fact, a refugee within the meaning of 8 U.S.C. §1101(a)(42) at
the time of his entry, i.e., if the Attorney General made a
mistake in allowing him to enter as a refugee in the first place.
8 U.S.C. §1157(c)(4); 8 C.F.R. §207.9. This is the only ground
on which the INA allows termination of refugee status. See
Matter of Garcia-Alzugaray, 19 I&N Dec. 407, 409 (BIA 1986)
(“The sole basis for terminating the status of an alien . . . who
was admitted to the United States as a refugee under [8 U.S.C.
§1157] is a determination that he was not a refugee within the
meaning of [8 U.S.C. §1101(a)(42)] at the time of his
6
For humanitarian purposes, to ensure family unity, or
when it is otherwise in the public interest, the government may
waive all of 8 U.S.C. §1182(a)’s bars to admission except those
which exclude (1) controlled substance traffickers, (2) those
who seek entry to the U.S. to engage in unlawful activity, (3)
those who have various kinds of relationships to terrorist
activity, (4) those whose entry into the U.S. would have
potentially serious adverse foreign policy consequences for the
U.S., and (5) those who participated in Nazi persecution,
genocide or the commission of any act of torture or extrajudicial
killings. 8 U.S.C. §1157(c)(3).
-13-
admission.”). After an alien’s refugee status has been
terminated, he is placed into removal proceedings. 8 C.F.R.
§207.9.
Every refugee admitted under 8 U.S.C. §1157 whose
refugee status has not been terminated is required, one year after
entry into the United States, to submit an application to adjust
status and become an LPR, i.e., to be “admitted for permanent
residence.” 7 8 C.F.R. §209.1. If the refugee is found to merit
LPR status, he will “be regarded as lawfully admitted to the
United States for permanent residence as of the date of [his]
arrival into the United States.” 8 U.S.C. §1159(a)(2). See also
8 C.F.R. §209.1(e). If the refugee is found not to merit LPR
status – if, for example, he is subject to one of 8 U.S.C.
§1182(a)’s bars to admission and the Attorney General does not
waive that bar – he will be placed into removal proceedings. 8
C.F.R. §209.1(e). See Matter of Jean, 23 I&N Dec. 373, 381
(BIA 2002) and Gen. Co. 93-78,1993 WL 1504025 (INS) (Oct.
8, 1993) (describing this process).
7
If a refugee does not voluntarily apply for and acquire
LPR status within a year of entering the United States, he is
apparently compelled to do so. See 8 U.S.C. §1159(a)(1)
(stating that such refugees must “return or be returned to the
custody of the Department of Homeland Security for inspection
and examination for admission to the United States in
accordance with” provisions of the INA governing removal and
removal proceedings).
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A refugee whose refugee status was not terminated
pursuant to 8 U.S.C. §1157(c)(4), and who has not yet been
adjudicated inadmissible by an immigration officer in the course
of applying for LPR status pursuant to 8 C.F.R. §209.1, may not
be placed in removal proceedings, even if he has engaged in
conduct that would subject a non-refugee to removal. Garcia-
Alzugaray, 19 I&N at 410. To that limited extent, refugee status
is a protected status.
2.
In 2004 – in Smriko v. Ashcroft, 387 F.3d 279 (3d Cir.
2004) – this court was faced with the precise question that is
now before it again. Sejid Smriko had entered the United States
as a refugee pursuant to 8 U.S.C. §1157 and had been granted
LPR status pursuant to 8 U.S.C. §1159(a)(2). He was thereafter
convicted three times of crimes of moral turpitude (retail theft
offenses), and placed in removal proceedings. Smriko claimed
(as Mr. Romanishyn claims here) that he could not be removed
because he still possessed refugee status – that status had not
been terminated pursuant to 8 U.S.C. §1157(c)(4), and was not
extinguished automatically when he acquired LPR status. The
IJ rejected this claim and ordered Smriko removed; the BIA
affirmed without opinion.
We held that the INA did not explicitly answer the
question of whether an alien’s protected refugee status persists
unless terminated pursuant to 8 U.S.C. §1157, or whether it
-15-
automatically is extinguished when he acquires LPR status. Id.
at 288. We acknowledged that there was support in the
legislative history for both Smriko’s interpretation and the
government’s.
In such a situation, where Congressional intent is
obscure, we stated, we would normally apply Chevron deference
to the agency’s interpretation of the statute, so long as that
construction was reasonable. By affirming the IJ’s decision
without opinion, however, the BIA failed to advance an
interpretation of the statute – let alone a reasonable
interpretation. We therefore remanded the Smriko case to the
BIA, instructing the BIA to “exercise its expertise and address
Smriko’s proposed reading of the INA.” Id at 281.
3.
After Mr. Romanishyn had filed his opening brief in this
appeal, but before the government filed its opposition brief,8 the
BIA issued the opinion that we, as the Smriko court, had
ordered. In re Sejid Smriko, 23 I&N Dec. 836 (BIA 2005). The
Board held that “an alien who has been admitted as a refugee
and has adjusted his or her status to that of a lawful permanent
resident may be placed in removal proceedings for acts or
conduct amounting to grounds for removal under [8 U.S.C.
§1227(a)].” This is true, the BIA held, even if the alien’s
8
See footnote 4.
-16-
refugee status has not been terminated pursuant to 8 C.F.R.
§1157(c)(4).
As noted above, the Board so held, not because it
believed the acquisition of LPR status itself “terminated”
refugee status, but because refugee status never provided
absolute exemption from removal in the first place. Thus,
refugees who have become LPRs may be removed even if their
refugee status is not in the process “terminated.”
To demonstrate that refugees never possess absolute
exemption from removal, the Board pointed to the provisions of
the INA that govern removal, which refer to “the alien,” and
“any alien,” and do not distinguish between aliens who were
admitted as refugees and those who were not. The Board also
pointed (as the government did here) to the provision that allows
refugees to be removed at the time they apply to become LPRs
if they are found inadmissible under 8 U.S.C. §1182(a). 8
U.S.C. §1159(a); 8 C.F.R. §209.1.
If a refugee may be removed before he becomes an LPR,
the Board reasoned, it follows that he may be removed after he
becomes an LPR.
Otherwise, a refugee convicted of a removable offense
prior to adjustment of status could be placed in removal
proceedings, while a refugee who, like the respondent,
was convicted after adjustment of status for the same
-17-
offense would be immune from removal. We find no
logical basis, and no support in the statutory or regulatory
framework, for drawing such a distinction based on
whether the conviction occurred before or after
adjustment of status. The most reasonable reading of [8
U.S.C. §1159], within the overall statutory framework, is
that a refugee whose status has been adjusted to that of a
lawful permanent resident is subject to all applicable
grounds for removal and to placement in removal
proceedings . . .
Under the respondent's view, an alien admitted as a
refugee who subsequently adjusted status could commit
crimes with impunity, or even engage in terrorist activity
and remain exempt from removal from the United States,
without regard to whether he or she had a continuing
need for protection from persecution in the country of
origin, so long as refugee status was not terminated by
the Attorney General. Given that the Attorney General is
authorized to terminate refugee status only when it is
determined that the alien was not, in fact, a refugee at the
time of his or her initial admission as a refugee, the vast
majority of aliens admitted as refugees would be immune
from removal without regard to conduct after admission.
It is difficult to imagine that Congress intended such a
result.
-18-
Id. at 840-841.9
4.
Under Chevron, when a court reviews an agency’s
construction of the statute it administers, it must ask whether the
intent of Congress on the precise question at issue is clear. If it
is not clear – i.e., if the statute is silent or ambiguous with
respect to the question at issue – the court must ask whether the
agency’s interpretation is a permissible construction of the
statute. 467 U.S. 837, 842-843. If it is, the court must defer to
that interpretation.
The Supreme Court has held that it is appropriate for a
court to apply Chevron deference to BIA interpretations of the
INA. INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999) (citing
INS v. Cardoza Fonseca, 480 U.S. 421, 448-449 (1987)). Such
deference is, in fact, particularly appropriate in the immigration
context, the Court has held, because immigration “officials
‘exercise especially sensitive political functions that implicate
questions of foreign relations.’” Id. (quoting INS v. Abudu, 485
9
The BIA noted that its conclusion does not create a
conflict between the INA and the requirements of the 1967
United Nations Protocol Relating to the Status of Refugees
because the Protocol’s mandated protection against return of a
refugee to a country where he will be persecuted is included in
8 U.S.C. §1231(b)(3).
-19-
U.S. 94, 110 (1988)).
Our court had previously determined in Smriko v.
Ashcroft, 387 F.3d 279, 288 (3d Cir. 2004) that Congress in its
immigration legislation was ambiguous and did not furnish a
clear answer to the question posed in Smriko and which we
asked at the outset of this opinion. Moreover, the legislative
history gives conflicting indications about Congressional intent.
Id. Thus we asked for the BIA’s answer to this question and,
now that we have received it (with the 2005 BIA opinion), our
task is to decide if the BIA’s interpretation is “a permissible
construction of the statute.” Under this second step of the
Chevron test, the court
must determine whether the regulation harmonizes with
the plain language of the statute, its origin, and purpose.
So long as the [interpretation] bears a fair relationship to
the language of the statute, reflects the views of those
who sought its enactment, and matches the purpose they
articulated, it will merit deference.
Zheng v. Gonzales, 422 F.3d 98, 119 (3d Cir. 2005) (quotations
and citations omitted).
That the INA addresses termination of refugee status in
only one provision – 8 U.S.C. §1157(c)(4) – might suggest, as
Mr. Romanishyn argues, that refugee status persists indefinitely
unless it is terminated pursuant to that provision. But, as the
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BIA points out, a refugee may under some circumstances be
removed even if his refugee status has not been terminated. We
are not only persuaded that the BIA answered the question we
put to it satisfactorily, but we are satisfied as well that its answer
is correct and reasonable. It was reasonable for the BIA to
conclude that, because aliens who entered as refugees were not
protected absolutely from removal at the moment they were
applying for LPR status, Congress did not intend for them to
have such absolute protection after they became LPRs. For
these reasons, the interpretation of the INA that the BIA offered
in In re Smriko “harmonizes with the plain language of the
statute, its origin, and purpose,” Zheng, 422 F.3d at 119, and is
a permissible construction to which we should defer.
We thus hold that an alien who, like Mr. Romanishyn,
entered the United States as a refugee pursuant to 8 U.S.C.
§1157, subsequently adjusted his status to become an LPR
pursuant to 8 U.S.C. §1159(a), and then was convicted of an
aggravated felony and/or two or more crimes of moral turpitude,
not arising out of a single scheme of criminal conduct, may be
placed into removal proceedings pursuant to 8 U.S.C.
§§1227(a)(2)(A)(iii) and 1227(a)(2)(A)(ii), though his refugee
status was never terminated pursuant to 8 U.S.C. §1157(c)(4).
C.
Finally, we reject Mr. Romanishyn’s argument that the
IJ denied him due process when he limited the number of
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witnesses who could testify at the hearing on his application for
withholding of removal. We exercise plenary review over
procedural due process claims. Singh v. Gonzales, 432 F.3d
533, 541 (3d Cir. 2006); Bonhometre v. Gonzales, 414 F.3d 442,
446 (3d Cir. 2005).
Aliens facing removal are entitled to due process.
Kamara v. Attorney General, 420 F.3d 202, 211 (3d Cir. 2005).
Due process in this context requires that an alien be provided
with a full and fair hearing and a reasonable opportunity to
present evidence. Singh, 432 F.3d at 541 (citing Chong v. Dist.
Dir., INS, 264 F.3d 378, 386 (3d Cir. 2001)); Abdulrahman v.
Ashcroft, 330 F.3d 587, 596 (3d Cir. 2003). To prevail on a due
process claim, an alien must show substantial prejudice. Singh,
432 F.3d at 541; Bonhometre, 414 F.3d at 448.
Mr. Romanishyn was afforded a reasonable opportunity
to present evidence. The court did indeed restrict him from
calling all the witnesses he wanted to call in person at his
hearing. “IJs are entitled,” however, “to broad . . . discretion
over the conduct of trial proceedings so long as those
proceedings do not amount to a denial of the fundamental
fairness to which aliens are entitled.” Muhanna v. Gonzales,
399 F.3d 582, 587 (3d Cir. 2005) (quotation omitted). Here, the
denial of Mr. Romanishyn’s request to call more witnesses in
person did not amount to a denial of fundamental fairness, and
did not substantially prejudice Mr. Romanishyn. Mr.
Romanishyn was permitted to submit affidavits from the
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witnesses the court did not allow him to call, and the court
considered those affidavits.10 We also recognize that despite the
fact that Mr. Romanishyn was permitted to call two witnesses,
he only called one. See AR54 (“respondent was restricted to the
testimony of two witnesses although only his uncle testified; the
others had submitted affidavits which have been fully
considered by the court.”).
For all of these reasons, we reject Mr. Romanishyn’s due
process claim.
III.
We will deny Mr. Romanishyn’s petition for review.
10
This fact distinguishes this case from Podio v. INS, 153
F.3d 506 (7th Cir. 1998), which Mr. Romanishyn cites in his
brief. In that case, the alien had not submitted affidavits from
his witnesses or any other written documentation, id. at 508, so
the IJ’s refusal to allow the alien’s brother and sister to testify
amounted to a refusal to allow him to submit any corroborating
evidence. Podio is also different from the instant case in that
there, the IJ prevented the alien in deportation proceedings
himself from testifying fully about his own experiences, whereas
here Mr. Romanishyn was allowed to testify freely.
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