Krougliak, Valerii A v. INS ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 01-3141
Valerii Krougliak,
Petitioner,
v.
Immigration and Naturalization Service,
Respondent.
On Petition for Review from a
Final Order of the Board of Immigration Appeals
Argued April 18, 2002--Decided May 7, 2002
Before Flaum, Chief Judge, and Harlington
Wood, Jr. and Posner, Circuit Judges.
Flaum, Chief Judge. Valerii Krougliak,
an alien ordered deported by the
Immigration and Naturalization Service,
appeals the Board of Immigration Appeals’
denial of his motion to reopen his case
and its disposition of his motion to
remand for adjustment of alien status.
For the reasons stated below, we affirm
the decisions of the Board.
I. BACKGROUND
Valerii Krougliak entered the United
States as a visitor in 1991 and, almost
immediately, filed an application for
asylum. Krougliak claimed that, as a
member of the Uniat Catholic Church and a
"Greek Catholic," he was subjected to
persecution in his native Ukraine. Four
years later, the INS denied Krougliak’s
petition, and on August 15, 1995, he was
asked to show cause why he should not be
deported.
During a deportation hearing held in May
of 1996, Krougliak again renewed his
request for asylum. With his renewed
application, Krougliak also attached his
own affidavit, requesting a stay of
proceedings until he received further
documentation evidencing his persecution
in the Ukraine. Krougliak’s case was
continued until May 5, 1997. When the
proceedings resumed, Krougliak furnished
the Immigration Judge with statements
from other individuals speaking to the
persecution suffered by adherents to his
faith. Notwithstanding Krougliak’s
submissions, the Immigration Judge denied
asylum because Krougliak had not shown a
reasonably objective basis for his fear
of returning home.
Krougliak then filed, pro se, an appeal
of the Immigration Judge’s decision with
the Board of Immigration Appeals. During
the pendency of his appeal, Krougliak
learned that his mother became gravely
ill and was moved (or was in the process
of moving) from the Ukraine to France.
Krougliak requested advance parole from
the INS to visit his ailing mother./1
The INS, however, did not permit
Krougliak to leave the country. On August
7, 1998, in an opinion adopting the
Immigration Judge’s findings, the Board
dismissed Krougliak’s appeal from the
denial of asylum and issued a final order
of deportation.
Almost two months after the Board’s
decision, in October of 1998, Krougliak,
filed a motion to reopen the
proceedings./2 According to his motion,
he had received new and previously
unavailable evidence which would have
supported his asylum application. This
evidence consisted of a letter, dated
April 6, 1997, allegedly from a Ukranian
government official, claiming that Greek
Catholics continue to be persecuted in
the Ukraine. Along with this letter,
Krougliak submitted an affidavit
purporting to explain why this evidence
was previously unavailable. According to
Krougliak, his mother had acquired the
document, but refused to send it to him,
in part, because she feared that, if he
was granted asylum she would never see
her son again. After his mother’s death,
his aunt sent him a copy of the letter.
During the pendency of his motion to
reopen proceedings, Krougliak filed a
motion to remand his case to an
Immigration Judge for an adjustment of
status. Apparently, Krougliak’s wife had
obtained her citizenship, which made an
immigrant visa available to him. On July
31, 2001, the Board dismissed Krougliak’s
motion to reopen and his motion to
remand. Referring to Krougliak’s motion
to reopen, the Board found that Krougliak
failed to establish that the information
he presented was previously unavailable.
As for Krougliak’s motion to remand for
adjustment of status, the Board treated
that motion as a second motion to reopen.
According to the Board, Krougliak’s case
had already been closed; therefore, there
was nothing to "remand." Because this
second motion was treated as a motion to
reopen, it was untimely pursuant to the
regulatory guidelines. See 8 C.F.R. sec.
3.2 (c)(2) (a motion to reopen must be
filed "no later than 90 days after the
date on which the final administrative
decision was rendered in the proceedings
sought to be reopened"). The final
administrative decision in this case
occurred on August 7, 1998 and Krougliak
filed his motion to remand on March 30,
2001. Krougliak now appeals the Board’s
decisions with respect to both motions.
II. DISCUSSION
When a denial of a motion to reopen is
based upon an alien’s failure to produce
previously unavailable evidence, we
review such decisions for an abuse of
discretion. See Karapetian v. INS, 162
F.3d 933, 937 (7th Cir. 1998). In
reviewing the Board’s decision to
construe Krougliak’s motion to remand as
a motion to reopen, we accord the Board
considerable deference in interpreting
its own regulations. See Perez-Rodriguez
v. INS, 3 F.3d 1074, 1079 (7th Cir.
1993). Under this standard, the Board’s
decision will "be upheld unless it was
made without a rational explanation,
inexplicably departed from established
policies, or rested on an impermissible
basis such as invidious discrimination
against a particular race or group."
Mansour v. INS, 230 F.3d 902, 907 (7th
Cir. 2000) (internal citations omitted).
A. Motion to Reopen
We find that the Board of Immigration
Appeals did not abuse its discretion in
denying Krougliak’s motion to reopen
proceedings. As set forth by
administrative regulation, "a motion to
reopen . . . shall not be granted unless
it appears to the Board that evidence
sought to be offered is material and was
not available and could not have been
discovered or presented at the former
hearing . . . ." 8 C.F.R. sec. 3.2
(c)(1). Furthermore, the Board has found,
and we agree, that a motion to reopen
should not be granted unless the acts or
evidence presented "could not by the
exercise of due diligence have been
discovered earlier . . . ." Matter of
Coelho, 20 I & N Dec. 464, 472 n.4 (BIA
1992).
When we examine the circumstances of
Krugliak’s motion to reopen, it appears
that the evidence he wished to present
was neither new nor previously
unavailable. First and foremost, the
document that formed the basis of
Krugliak’s motion to reopen was in
existence at the time of his asylum
hearing. Krugliak’s assertion that such
evidence "was outside the U.S. and
impossible . . . to obtain" is undercut
by the fact that he received (and
presented) other documents from the
Ukraine, through non-traditional means,
such as personal couriers. The document
does not appear so sensitive that it
could not have been obtained (and
subsequently transmitted to Krougliak) by
other individuals. Furthermore, any
argument that Krougliak’s mother refused
to release the document to him is not
supported by the record. In papers filed
with the INS, in which he sought to visit
his ailing mother during the pendency of
his BIA appeal, Krougliak failed to
mention that his mother was in possession
of documents that could have been helpful
to his asylum application.
In the context of deportation
proceedings, a movant bears a heavy
burden to reopen matters due to the
discovery of previously unavailable
evidence. See INS v. Abudu, 485 U.S. 94,
110 (1988). In light of this burden and
the facts highlighted above, the BIA
acted within its discretion in denying
Krougliak’s motion.
B. Motion to Remand
We have, to date, not decided whether,
in immigration proceedings, a motion to
remand, filed after the entry of a final
order should be treated as a motion to
reopen. The Board of Immigration Appeals
has spoken on the issue in the Matter of
L-V-K, Interim Decision 3409, 1999 WL
607159 (BIA 1999). In that case, the
Board determined that when a motion to
remand is filed after a final order has
been issued and proceedings have been
closed, "[u]nless and until such time as
the proceedings are reopened," it will
treat that motion as one to reopen
proceedings. Id. at *4. The Fifth Circuit
has approved of the Board’s reasoning.
See Wang v. Ashcroft, 260 F.3d 448, 452
(5th Cir. 2001) ("In order to return the
matter to the immigration judge for fresh
consideration of Wang’s changed
circumstances, the Board would first need
to reopen Wang’s case. Thus, the Board
properly construed his motion as a motion
to reopen, rather than a motion to
remand."). To us as well, the Board’s
logic appears sound, reasonable, and
entitled to deference--as procedurally it
would be impossible to remand a case that
had been closed. Therefore, we hold that
when a petitioner files a motion to
remand for adjustment of status after his
case has been closed, that motion should
be treated as one to reopen proceedings.
The Board properly disposed of
Kroulgiak’s motion to remand as an
untimely motion to reopen.
III. CONCLUSION
In light of the foregoing, we AFFIRM the
decisions of the Board of Immigration
Appeals.
FOOTNOTES
/1 In his request for advance parole, Krougliak did
not mention that he intended to retrieve docu-
ments, relevant to his asylum petition, from his
mother.
/2 In filing this motion, Krougliak was represented
by counsel.