Oleksandr Oliynyk v. Attorney General United States ( 2018 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 18-1712
___________
OLEKSANDR OLIYNYK, AKA Oliynyk V. Oleksandr,
AKA Oleksandr V. Oliyntk, AKA Oleksandr V. Oliynyk,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A205-986-682)
Immigration Judge: Honorable Steven A. Morley
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 4, 2018
Before: VANASKIE, COWEN and NYGAARD, Circuit Judges
(Opinion filed: September 6, 2018)
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OPINION *
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PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Pro se petitioner Oleksandr Oliynyk petitions for review of a final order of
removal. For the reasons detailed below, we will deny the petition.
Oliynyk is a citizen of the former U.S.S.R. He entered the United States in 1999
(he claims) or 2002 (the Government claims) on a student visa. In 2014, he was
convicted in Pennsylvania state court of theft by deception and sentenced to three-and-a-
half to seven years’ imprisonment. In 2017, the Government charged Oliynyk with being
removable because (1) he had been convicted of a theft offense that qualified as an
aggravated felony under 8 U.S.C. § 1101(a)(43)(G); (2) he had been convicted of an
offense involving fraud or deceit in which the loss to the victims exceeded $10,000 that
qualified as an aggravated felony under § 1101(a)(43)(M); and (3) he had failed to
maintain or comply with the conditions of his nonimmigrant status under
§ 1227(a)(1)(C)(i).
Oliynyk, who has proceeded pro se throughout these proceedings, has zealously
litigated his case. Before an Immigration Judge (IJ), he applied for asylum, withholding
of removal, and relief under the Convention Against Torture (CAT). He claimed that he
feared that Ukrainian nationalists would harm him due to his Russian ethnicity. He also
alleged that the Government had failed to establish that he had actually been convicted of
the theft-by-deception offense and raised numerous procedural objections. Ultimately,
the IJ denied all relief to him and ordered his removal. Oliynyk appealed to the Board of
Immigration Appeals (BIA), raising numerous claims. In a thorough decision, the BIA
affirmed the IJ in all respects and dismissed the appeal. Oliynyk then filed a petition for
review to this Court.
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We generally have jurisdiction to review a final order of removal under 8 U.S.C.
§ 1252(a)(1). However, because, as we discuss below, we conclude that Oliynyk is
removable for having committed an aggravated felony, § 1252(a)(2)(C)’s jurisdiction-
stripping provision applies. See generally Singh v. Att’y Gen., 839 F.3d 273, 282 (3d
Cir. 2016). As a result, our jurisdiction is limited to questions of law and constitutional
claims. See § 1252(a)(2)(D).
Oliynyk’s first argument is that the Government failed to carry its burden of
proving that he was actually convicted of the theft offense. We are not persuaded. The
Government presented a court-commitment form, a sentencing sheet, trial- and appellate-
court dockets, and transcripts of his trial and sentencing proceedings, all of which show
that Oliynyk was convicted of theft by deception. 1 See A.R. at 392-448, 870-946. This
evidence amply documented Oliynyk’s conviction. See generally 8 C.F.R. § 1003.41
(listing documents that can be used to prove a criminal conviction). At times Oliynyk
also seems to argue that he is innocent of the offense, but he cannot collaterally attack his
criminal judgment in removal proceedings. See Drakes v. INS, 330 F.3d 600, 602-04 (3d
Cir. 2003).
Oliynyk did not argue in his appeal to the BIA that a conviction for theft by
deception does not qualify as an aggravated felony, and he consequently has not
exhausted that issue. We therefore lack jurisdiction to review it. See 8 U.S.C.
1
The Superior Court also issued an opinion affirming this conviction. See
Commonwealth v. Oliynyk, No. 1325 EDA 2014, 2015 WL 6410311 (Pa. Super. Ct. Jan.
30, 2015).
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§ 1252(d)(1); Lin v. Att’y Gen., 543 F.3d 114, 119-21 (3d Cir. 2008); Malu v. Att’y
Gen., 764 F.3d 1282, 1287–90 (11th Cir. 2014). Thus, as we noted above, we conclude
that Oliynyk has been convicted of an aggravated felony, and our jurisdiction is limited to
legal and constitutional issues. The aggravated-felony conviction also renders Oliynyk
ineligible for asylum, see § 1158(b)(2)(A)(ii), (b)(2)(B)(i), and, because his maximum
sentence exceeded five years, withholding of removal, see § 1231(b)(3)(B); Bovkun v.
Ashcroft, 283 F.3d 166, 171 (3d Cir. 2002).
Oliynyk next argues that the IJ erred by failing to continue a hearing because he
was ill. However, we have ruled that “[t]he denial of a motion for a continuance is
discretionary,” and does “not raise a constitutional claim or question of law covered by
§ 1252(a)(2)(D)’s judicial review provision.” Rachak v. Att’y Gen., 734 F.3d 214, 216–
17 (3d Cir. 2013) (quotation marks, alteration omitted). Thus, we lack jurisdiction to
review this discretionary decision. Moreover, even assuming that there might be a way to
frame such a claim as alleging denial of due process, see generally Hoxha v. Holder, 559
F.3d 157, 163 n.5 (3d Cir. 2009), Oliynyk would not prevail here. In response to
Oliynyk’s claim that he was sick, the IJ directed his court officer and the Government
attorney to call the medical facility at Oliynyk’s prison. Counsel for the Government said
that he was told there was no reason that Oliynyk could not participate in court that day,
and the court officer testified that a nurse reported that Oliynyk was taking just a mild
medication for stomach trouble and did not have a doctor’s appointment scheduled for
another month. See A.R. at 227-29. Moreover, the record shows that, despite his
assertions of illness, Oliynyk represented himself aggressively and without any apparent
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limitation. Thus, to the extent Oliynyk asserts this as a due-process argument, we reject
it. See Khan v. Att’y Gen., 448 F.3d 226, 236 (3d Cir. 2006) (to make successful due-
process claim, alien “must show that he was prevented from reasonably presenting his
case” (quoting Uspango v. Ashcroft, 289 F.3d 226, 231 (3d Cir. 2002)).
Oliynyk also argues that his due-process rights were violated by the failure of the
agency to transcribe a hearing that was held on June 26, 2017. He is right that this
transcript does not appear in the record. However, the mere absence of a transcript does
not mean that an alien is deprived of his due-process rights. See United States v. Medina,
236 F.3d 1028, 1032 (9th Cir. 2001). To be entitled to relief, Oliynyk must demonstrate
that he was prejudiced by the alleged due-process violation—that is, that a complete
transcript might have changed the outcome of his case. See Ortiz-Salas v. INS, 992 F.2d
105, 106 (7th Cir. 1993). He contends that, in the June 26, 2017 hearing, he designated
as countries of removal the United Kingdom, Germany, or Switzerland, and that the
agency incorrectly determined that he declined to designate a country. See generally 8
U.S.C. § 1231(b)(2) (providing rules for selecting country of removal). However, he did
not make this argument before the BIA. See A.R. at 9. While we apply the exhaustion
rules liberally in the immigration context, see Lin v. Att’y Gen., 543 F.3d 114, 121 (3d
Cir. 2008), Oliynyk did not so much as hint in his brief to the BIA that he had designated
a country for removal, and never mentioned the United Kingdom, Germany, or
Switzerland at all. Thus, we lack jurisdiction to consider this claim.
Next, Oliynyk contends that the removal proceedings should have been terminated
because there was a defect in the initial notice to appear (NTA). The record on this claim
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is somewhat confused. It does appear that DHS served an NTA on Oliynyk on May 23,
2017 (which Oliynyk refused to sign), but that the NTA was, for reasons that are nowhere
explained, rejected by the Executive Office for Immigration Review on May 25, 2017.
See A.R. at 51-52, 70, 200. Because the NTA was rejected, DHS served it again on June
16, 2017. However, the substance of the two documents was the same (it is not clear
whether DHS simply refiled the same document or filed a new document with the same
charges), see A.R. at 200, and Oliynyk was informed of the operative charges before his
hearing, see id. at 201. Thus, Oliynyk has not shown that he was prejudiced by the fact
that DHS served a second NTA. See generally Jean-Louis v. Att’y Gen., 582 F.3d 462,
465 n.4 (3d Cir. 2009) (alleged shortcoming in NTA was harmless because the petitioner
“was adequately apprised of the issue”).
Finally, Oliynyk challenges the BIA’s conclusion that he failed to show that he
was entitled to CAT relief. However, the BIA’s key conclusions—that the IJ “did not
clearly err in assessing country conditions or in forecasting the likelihood that the
respondent would be tortured upon return to Ukraine,” BIA Op. at 3—are factual
determinations, see Kaplun v. Att’y Gen., 602 F.3d 260, 271-72 (3d Cir. 2010), and thus
are beyond our jurisdiction to review, see Roye v. Att’y Gen., 693 F.3d 333, 343 n.12 (3d
Cir. 2012).
Accordingly, we will deny the petition for review.
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