Nazar Bachynskyy v. Eric Holder, Jr , 668 F.3d 412 ( 2011 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2793
N AZAR B ACHYNSKYY,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A095-491-475
A RGUED F EBRUARY 22, 2011—D ECIDED D ECEMBER 15, 2011
Before W ILLIAMS and T INDER, Circuit Judges, and
G OTTSCHALL, District Judge.Œ
W ILLIAMS, Circuit Judge. Nazar Bachynskyy is a twenty-
eight year old Ukrainian citizen who entered the United
States without being admitted or paroled. After being
turned over to the legacy Immigration and Naturalization
Œ
The Honorable Joan B. Gottschall, United States District Court
for the Northern District of Illinois, Eastern Division, sitting by
designation.
2 No. 10-2793
Service at a truck stop weigh station, removal proceedings
were commenced. Bachynskyy conceded removability, but
sought withholding of removal and protection under
the Convention Against Torture. At the conclusion of
the hearing on his claims, the Immigration Judge stated
that she was continuing the case for four months, but
stated that “[i]f I render a written decision before that date,
you don’t need to come back to court. Just make sure
you stay in touch with your lawyers.” Bachynskyy did
not specifically request voluntary departure at this
hearing, and the IJ did not discuss the possibility or
requirements of voluntary departure at the conclusion of
the hearing. In the written decision, issued only three days
after the hearing, the Immigration Judge denied
Bachynskyy’s withholding and Convention Against
Torture claims, but granted Bachynskyy voluntary depar-
ture. The order stated that Bachynskyy was required
to post a $500 bond within five days. Bachynskyy’s lawyer
at the time, however, allegedly did not receive the
decision until the day before the bond was due, and the
bond was never paid.
In his direct appeal to the Board of Immigration Appeals,
Bachynskyy filed a motion to reinstate voluntary depar-
ture, alleging that notice regarding the bond was deficient.
While the Board was considering the motion, new regula-
tions went into effect requiring immigration judges
to advise the noncitizen, before granting voluntary depar-
ture, of the amount of the voluntary departure bond
and the duty to post bond within five business days.
8 C.F.R. § 1240.26(c)(4) (2009). The Board dismissed
Bachynskyy’s appeal and rejected his request to reinstate
No. 10-2793 3
voluntary departure. Bachynskyy filed a motion to reopen
with the Board. The Board denied his petition, finding that
the new regulations regarding notice were not retroactive.
This petition for review followed.
We find that the warnings required by the current
regulations regarding voluntary departure are not retroac-
tively applicable to grants of voluntary departure
made before January 20, 2009. We also find
that Bachynskyy cannot raise a colorable due process
claim as there was no procedural defect based on the
lack of advisals, and Bachynskyy did receive (though
somewhat flawed) notice of the bond requirement. There-
fore, we deny in part, and dismiss in part, the petition for
review.
I. BACKGROUND
Nazar Bachynskyy, a twenty-eight year old citizen
of Ukraine, entered the United States on July 2, 2000
without being admitted or paroled. Bachynskyy, a
truck driver, was turned over to the the legacy Immigra-
tion and Naturalization Service (“INS”) after admitting
to officials at a weigh station that he lacked documenta-
tion. On January 23, 2003, the legacy INS initiated
removal proceedings by filing a Notice to Appear (“NTA”)
in which Bachynskyy was charged with removability
under section 212(a)(6)(A)(i) of the Immigration and
Nationality Act (“INA”) for being an alien present in
the United States without being admitted or paroled.
On February 5, 2003, through his counsel Slava
Tenenbaum, Bachynskyy filed a motion to change venue
4 No. 10-2793
from the Immigration Court in Kansas City to Chicago. In
the motion, Bachynskyy admitted the allegations in
the NTA, and conceded removability. On March 14, 2003,
the Immigration Court in Kansas City granted the change
of venue.
On August 26, 2003, Bachynskyy filed an application
for asylum, withholding of removal, and protection under
the Convention Against Torture (“CAT”). On January 17,
2005, Tenenbaum withdrew his appearance on behalf
of Petitioner, and new counsel, Christopher Grobelski,
entered an appearance on his behalf. Bachynskyy later
withdrew his application for asylum.
On April 1, 2008, the Immigration Judge (“IJ”) conducted
a full merits hearing regarding Bachynskyy’s withholding
and CAT claims. At the conclusion of the hearing, the
IJ noted that she wanted to more carefully review the
background information. She stated that she was continu-
ing the case to July 29, 2008 for a decision, but also
stated that “[i]f I render a written decision before that
date, you don’t need to come back to court. Just make
sure you stay in touch with your lawyers.” Bachynskyy did
not specifically request voluntary departure at this hearing,
and the IJ did not discuss the possibility or requirements
of voluntary departure at the conclusion of the hearing.
Three days later, on April 4, 2008, the IJ issued a written
opinion, finding Bachynskyy removable, and denying
his application for withholding of removal and his CAT
claim. However, the IJ granted Bachynskyy voluntary
departure, stating that he “is required to post a $500.00
departure bond to [e]nsure compliance with the or-
No. 10-2793 5
der.” The decision also stated that “if [Bachynskyy] fails to
depart as required or otherwise fails to comply with
this order, the above order granting voluntary depart-
ure shall be withdrawn without further notice or proceed-
ings . . . .”
The written decision was mailed to the Law Offices
of Christopher Grobelski in Chicago, and the date on
the transmittal form was April 4, 2008. The cover page
also stated that a Notice of Entry as Attorney before the
Board of Immigration Appeals (“BIA”) must be filed on
or before May 2, 2008. Bachynskyy did not pay the
$500 bond before the 5 business-day period expired
on April 11, 2008.
On May 2, 2008, Bachynskyy appealed the IJ’s decision
to the BIA. The Department of Homeland Security (“DHS”)
opposed the appeal on August 27, 2008, and informed the
BIA that Bachynskyy had not paid the voluntary departure
bond. 1 Bachynskyy’s counsel, Grobelski, filed a motion to
reinstate voluntary departure with the BIA on September
15, 2008. The motion stated that:
We would like to bring to the Board’s attention that
the Respondent’s attorney did not receive the IJ’s
[April 4, 2008] decision until April 10, 2008, which is
probably due to Chicago having the nation’s worst
postal service. Please see attached Exhibit B, an article
documenting Chicago’s postal service as the worst in
the country.
1
Prior to January 20, 2009, the BIA would assume that the bond
was posted unless informed otherwise. See Matter of Gamero, 25
I. & N. Dec. 164 (BIA 2010).
6 No. 10-2793
The motion also stated that a “late attempt to post bond
with DHS was unsuccessful,” but did not provide specifics
for the attempt. Bachynskyy’s counsel also argued that:
Five days to post a bond in cases when the order of
IJ is mailed to the Respondent is not a reasonable
period of time to be able to do so, especially when
notice is served via the U.S. Postal Service (USPS). The
Board itself has, for a long time, recognized and
“strongly encourage[d]” the use of overnight courier to
ensure timely delivery. Since it was not the Respon-
dent's fault, but rather the result of inadequate service
on the part of USPS, we request that the Board pre-
serve the relief of voluntary departure in case the
Respondent’s appeal is denied.
While the BIA was considering the motion, new regula-
tions went into effect regarding the grant of voluntary
departure. Effective January 20, 2009, the regulations,
among other changes, now require immigration judges to
advise the noncitizen, before granting voluntary departure,
of the amount of the voluntary departure bond and
the duty to post bond within five business days. 8 C.F.R.
§ 1240.26(c) (2009).
On January 8, 2010, the BIA dismissed Bachynskyy’s
appeal and rejected his request to reinstate volunt-
ary departure. Bachynskyy did not file a petition for review
of the BIA’s January 8, 2010 decision. On February 16, 2010,
Bachynskyy, through new (and present) counsel, filed
a motion to reopen with the BIA, arguing that the IJ failed
to provide him with notice regarding his responsi-
bilities concerning voluntary departure before granting
No. 10-2793 7
voluntary departure, and that this lack of notice deprived
him of an opportunity to understand the significance of
posting the $500 bond. He argued that he was prejudiced
in not receiving the full advisals as they relate to the grant
of voluntary departure, and that the IJ’s decision was
received several days after the IJ entered the order, which
prevented him from posting bond within five business
days.
The BIA denied his petition on July 8, 2010, finding that
the new regulations regarding notice were not retro-
active, and that when Bachynskyy failed to post the
required bond, “there was no voluntary departure order
for the Board to reinstate,” and thus the BIA on
Bachynskyy’s appeal properly declined to reinstate the
IJ’s grant. Finally, the Board declined to reopen
Bachynskyy’s case because he had not submitted support-
ing affidavits or other evidentiary material warranting
a hearing. This petition for review followed.
II. ANALYSIS
We start our analysis with the question of jurisdiction.
The government argues that we lack jurisdiction under
8 U.S.C. § 1229c(f), which states that “[n]o court shall
have jurisdiction over an appeal from denial of a
request for an order of voluntary departure.” See also
Pawlowska v. Holder, 623 F.3d 1138, 1142 (7th Cir. 2010). It
is clear that the INA bars review of the agency’s discretion-
ary decision to deny voluntary departure. See Lopez-Chavez
v. Ashcroft, 383 F.3d 650, 652 (7th Cir. 2004) (“As
we indicated earlier, this case does not present the
8 No. 10-2793
question whether courts have jurisdiction to review
the merits of an underlying decision on a request for
voluntary departure; it is perfectly clear that they do
not.”) (citing 8 U.S.C. § 1229c(f)); Sofinet v. I.N.S., 196
F.3d 742, 748 (7th Cir. 1999). Bachynskyy, however, does
not challenge the IJ’s decision to deny voluntary
departure for the very good reason that he was in
fact granted such relief.
While we have not addressed whether 8 U.S.C. § 1229c(f)
bars review of a motion to reopen related to voluntary
departure, we have on occasion held that where we
lack jurisdiction to review an underlying order, we
also lack jurisdiction over appeals from denials of
motions to reopen and reconsider those orders. See,
e.g., Martinez-Maldonado v. Gonzales, 437 F.3d 679, 683
(7th Cir. 2006). However, in the context of the juris-
dictional bar found in § 1252(a)(2)(B)(i), we recently
clarified in Calma v. Holder, ___ F.3d___, 2011 WL 6016158,
at *7 (7th Cir. December 5, 2011), that “there are identifi-
able circumstances under which a critical procedural
step in a removal proceeding, such as . . . a refusal to
reopen a case, lies within our jurisdiction even though we
are barred from evaluating the BIA’s ultimate decision”
on the merits. We also noted that where “it is impossible
to distinguish the challenged action from the determina-
tion on the merits, then jurisdiction is lacking and
the petition must be dismissed.” Id. We find the same
reasoning applicable to the jurisdictional bar found in
§ 1229c(f) and note that Bachynskyy’s challenge is
wholly independent of the merits of the grant of voluntary
departure.
No. 10-2793 9
But regardless of the applicability of 8 U.S.C. § 1229c(f)
to this case, we retain jurisdiction over constitu-
tional claims and questions of law. See 8 U.S.C.
§ 1252(a)(2)(D); Kucana v. Holder, 130 S. Ct. 827, 831-
32 (2010). A legal question arises when the Board misinter-
prets a statute, regulation, constitutional provision, or
its own precedent, applies the wrong legal standard, or
fails to exercise its discretion at all. Patel v. Holder,
563 F.3d 565, 568 (7th Cir. 2009) (citing Adebowale
v. Mukasey, 546 F.3d 893, 896 (7th Cir. 2008)). Bachynskyy
seeks to raise a question of law, one asking whether
certain advisals given to a noncitizen before being
granted voluntary departure, which are required by
current regulations, are applicable to his case, when
his grant of voluntary departure preceded the effective
date of those regulations. We find that we have jurisdiction
to address this question of law, but that the current
regulations, and the advisals they contain, are not retroac-
tively applicable to grants of voluntary departure made
before January 20, 2009.
The INA provides that the Attorney General “may
permit” certain removable noncitizens to “voluntarily []
depart the United States at the alien’s own expense” in
lieu of being removed. 8 U.S.C. § 1229c(a)(1), (b)(1).
Noncitizens who are granted voluntary departure and
comply with its terms are able to make their own travel
arrangements, avoid extended periods of detention, and
avoid the period of inadmissibility that would other-
wise result from an order of removal. See Dada v.
Mukasey, 554 U.S. 1, 11 (2008).
10 No. 10-2793
Voluntary departure can be sought before the conclusion
of removal proceedings, or at the conclusion of proceed-
ings. See id. at 10; see also § 1229c(b)(2), (a)(2)(A).
Noncitizens permitted to depart voluntarily at the conclu-
sion of their removal proceedings “shall be required to
post a voluntary departure bond[.]” 8 U.S.C. § 1229c(b)(3).
The regulations at the time Bachynskyy was granted
voluntary departure stated that the bond “shall be
posted with the district director within 5 business days
of the immigration judge’s order granting voluntary
departure.” 8 C.F.R. § 1240.26(c)(3) (2006). If the bond
is not posted within five business days, the voluntary
departure order “shall vacate automatically and the
alternate order of removal will take effect on the follow-
ing day.” Id. A noncitizen who fails to voluntarily
depart from the United States within the specified volun-
tary departure period is subject to a civil fine of bet-
ween $1000 and $5000, and such an individual is rendered
ineligible for a period of 10 years to receive certain
forms of discretionary relief, including cancellation of
removal, adjustment of status, and a subsequent
grant of voluntary departure. 8 U.S.C. § 1229c(d)(1)(A)-(B).
The INA specifically requires that “[t]he order permitting
an alien to depart voluntarily shall inform the alien of
the penalties under this subsection.” 8 U.S.C. § 1229c(d)(3).
Before the change in the regulations, noncitizens began
to get caught between the numerical time limit in the
voluntary departure provision, and the statutory right to
file a motion to reopen. The voluntary departure provision
requires that noncitizens depart within 60 days after being
granted such relief. 8 U.S.C. § 1229c(b)(2) (related to
No. 10-2793 11
voluntary departure and stating that the period within
which the alien may depart voluntarily “shall not be valid
for a period exceeding 60 days”). The INA also permits
noncitizens an opportunity to file a motion to reopen
within 90 days of a final order of removal. 8 U.S.C.
§ 1229a(c)(7) (granting a noncitizen the right to file
one motion to reopen and providing that “the motion to
reopen shall be filed within 90 days of the date of entry
of a final administrative order of removal”). In certain
cases, noncitizens were subject to civil penalties for
failing to depart when choosing to exercise their right to
file a motion to reopen. And if they chose to depart,
their departure would result in automatic withdrawal
of a pending motion to reopen. 8 C.F.R. § 1003.2(d).
In In re Diaz-Ruacho, 24 I. & N. Dec. 47 (BIA 2006),
the BIA found that a noncitizen who failed to meet
the voluntary departure bond requirement was “not
subject to the penalties of” the INA for failure to
depart during the departure period, because by failing
to post the bond, voluntary departure never took effect.
This essentially allowed a noncitizen to “choose” not
to accept voluntary departure by failing to post the bond,
and thus not be subject to penalties for not departing
during the voluntary departure period if the non-
citizen instead chose to remain and file a motion to reopen
proceedings.
Following a split in the circuit courts, the issue reached
the Supreme Court in 2008 in Dada v. Mukasey, 554 U.S.
1 (2008). Dada held that a noncitizen must be given
an opportunity to withdraw her request for voluntary
12 No. 10-2793
departure before the departure period expired in order
to preserve her statutory right to file a motion to reopen.
Id. at 21 (“We hold that, to safeguard the right to pursue
a motion to reopen for voluntary departure recipients,
the alien must be permitted to withdraw, unilaterally,
a voluntary departure request before expiration of
the departure period, without regard to the underlying
merits of the motion to reopen.”). Dada, though,
had posted the bond, and so the failure to post the bond
was not at issue.
Following Dada, the Attorney General and DHS issued
new regulations. The current regulations, made effective
January 20, 2009, still require the posting of the volun-
tary departure bond within five business days,
but state that a failure to post a bond does not
terminate the obligation to depart or exempt a person
from the consequences of failing to depart under INA
§ 240B(d), 8 U.S.C. § 1229c(d). See 8 C.F.R. § 1240.26(c)(4)
(2009). This rule reverses the BIA’s decision in In re Diaz-
Ruacho for grants of voluntary departure on or
after January 20, 2009. Additionally, under the current
regulation, the filing of a petition for review in federal
court automatically terminates the grant of voluntary
departure. 8 C.F.R. § 1240.26(f).
The current regulations also require IJs to provide
certain notices to individuals before granting voluntary
departure. Under 8 C.F.R. § 1240.26(c)(3), the IJ must advise
the individual of: (1) the amount of the bond and the duty
to post bond within five business days and any voluntary
departure conditions beyond those enumerated in the
No. 10-2793 13
regulations; (2) that voluntary departure will terminate
automatically upon the filing of a motion to reopen or
reconsider during the voluntary departure period and
the alternate order of removal will take effect immediately;
and (3) that if an appeal is filed, the individual must
submit proof of having posted the voluntary departure
bond within 30 days of having filed the appeal. After
this notice is provided, the individual has the opportunity
to accept or decline voluntary departure.
The agency, at the time of rulemaking, indicated
an intent that the new regulations would apply prospec-
tively only, that is, to cases on or after January 20, 2009.
See 73 Fed. Reg. 76927, 76936 (“[T]he provisions of this
rule are prospective only.”). The BIA confirmed this
in Matter of Velasco, 25 I. & N. Dec. 143 (BIA 2009), in which
it found that the 2009 voluntary departure regulations
did not apply retroactively, and that where an indivi-
dual granted voluntary departure by an IJ before January
20, 2009 failed to pay the bond, the penalties imposed
for failing to depart the United States within the departure
period did not apply. This was a benefit to some
noncitizens at the time, as the BIA noted that such a ruling
“eliminates any unfairness to an alien who, prior to
the regulatory change, chose not to post a voluntary
departure bond because the Board had ruled in Matter
of Diaz-Ruacho that failing to post the bond would automat-
ically vacate the grant of voluntary departure . . . .” Id. at
146.
In January 2010, the BIA applied the new regulations
to a post-January 2009 grant of voluntary departure,
14 No. 10-2793
finding that where an IJ did not advise the noncitizen
of the consequences of failing to provide proof of the
posting of the bond to the BIA on appeal, the non-
citizen was entitled to a new hearing with the required
advisals and a new period of voluntary departure.
Matter of Gamero, 25 I. & N. Dec. 168 (BIA 2010). The BIA
stated in a footnote in that decision that the prior version
of the regulations, (in effect at the time of Bachynskyy’s
grant of voluntary departure), “did not include an explicit
requirement that Immigration Judges must advise
aliens of bond conditions and duties before granting
voluntary departure.” Id. at 166 n.3.
Bachynskyy essentially concedes that the post-January
20, 2009 regulations are not retroactive, and that the
current mandatory pre-grant warnings by the IJ were not
required by specific regulations in effect at the time
of Bachynskyy’s hearing. However, he argues that
the new regulatory scheme shows the importance
of warning a noncitizen of the consequences of failing
to post the required bond and urges this court to find
that a failure to advise a noncitizen of the bond require-
ment and the consequences of failing to depart even
before January 20, 2009 warrants reversal. We decline
to make such a finding. Under the current regulations,
even if the individual fails to or decides not to pay
the bond, the penalties for failing to leave within the
departure period attach. Currently, an individual must
choose whether or not to accept voluntary departure,
because once the IJ grants it, the penalties loom in
the distance. 8 C.F.R. § 1240.26(c)(4) (2009). This was not
the case pre-January 20, 2009, where a failure to pay
No. 10-2793 15
the bond did not result in civil penalties if the individual
did not depart within the departure period, because, as
discussed above, it was as if voluntary departure never
attached. In re Diaz-Ruacho, 24 I. & N. Dec. 47. Thus, while
warnings and pre-grant advisals would certainly have been
ideal, especially in this case where there was never any
discussion of voluntary departure, and notice was con-
ducted by mail and arrived only a day before the bond
deadline, the current mandatory warnings exist to protect
against dangers that Bachynskyy did not face.
Bachynskyy also relies on In re Cordova, 22 I. & N. Dec.
966, 968 (BIA 1999), in which the Board found that an
IJ has a duty to inform noncitizens of apparent
eligibility for voluntary departure under 8 U.S.C.
§ 1229c(a), which relates to voluntary departure sought
either before or at the master calendar hearing. The Board
explained that it was “critical” that noncitizens “be in-
formed of the requirements for relief, as well as
their apparent eligibility, and that they be given
the opportunity to apply for such relief.” 22 I. & N. Dec. at
971. Bachynskky, however, does not claim that he
was somehow prevented from seeking, or that he would
have sought, voluntary departure under 8 U.S.C. § 1229c(a)
instead of pursuing his CAT and withholding claims,
and thus In re Cordova is not directly on point.
Bachynskyy also seeks to raise a due process claim for
the alleged notice deficiencies, and we come back to
the jurisdictional issue. A constitutional claim “ ‘would
at least have to be colorable’ before a court will exercise
jurisdiction to review such a claim or question.” Zamora-
Mallari v. Mukasey, 514 F.3d 679, 696 (7th Cir. 2008) (quot-
16 No. 10-2793
ing Torres-Aguilar v. INS, 246 F.3d 1267, 1271 (9th
Cir. 2001)). “To be colorable in this context . . . the claim
must have some possible validity.” Torres-Aguilar, 246
F.3d at 1271 (internal quotation omitted). Bachynskyy
alleges a due process violation based on “the procedural
defect of not being properly advised of what was
required to maintain his grant of voluntary departure,”
and claims that he was prejudiced as a result. We
have held that in most cases, a procedural defect is cured
by allowing a new hearing in which the defect is not
present. Tamas-Mercea v. Reno, 222 F.3d 417, 427
(7th Cir. 2000) (citing Batanic v. INS, 12 F.3d 662, 664
(7th Cir. 1993)). But given that the current regulations
were not made retroactive, and pre-grant advisals were
not required before January 20, 2009, Bachynskyy cannot
rely on the lack of advisals to serve as the “defect” underly-
ing a due process claim.2
2
Bachynskyy does not raise a due process claim for a violation
of 8 C.F.R. § 1240.11(a)(2), which provides, in relevant part:
“[t]he immigration judge shall inform the alien of his or her
apparent eligibility to apply for any of the benefits enumerated
in this chapter and shall afford the alien an opportunity to make
application during the hearing, in accordance with the provi-
sions of § 1240.8(d),” and thus we do not address that regula-
tion’s application to this case. Courts have read 8 C.F.R.
§ 1240.11(a)(2) to impose a duty on the immigration judge to
inform a noncitizen of apparent eligibility for relief, and a
showing of prejudice is required to show that the noncitizen’s
right to due process was violated. See Bejko v. Gonzales, 468
F.3d 482, 487 (7th Cir. 2006) (“Bejko’s due process claim based on
the IJ’s failure to inform is reversible error only if he can
demonstrate prejudice arising from it . . . .”).
No. 10-2793 17
The sequence of events alerting Bachynskyy to the bond
requirement is somewhat troubling: the IJ did not discuss
the possibility of voluntary departure with him at the
April 1, 2008 hearing and continued the case until July 29,
2008 for a decision on Bachynskyy’s CAT and withholding
claims. While she also stated that, “[i]f I render a written
decision before that date, you don’t need to come back to
court,” and “make sure you stay in touch with your
lawyers,” she did not alert Bachynskyy or his counsel to
the possibility of being awarded voluntary departure in
that decision, or that a bond would be required if he were
granted such relief. And notice of Bachynskyy’s grant of
voluntary departure and the bond requirement allegedly
did not reach counsel until the day before the bond
was due.
However, a decision of the Immigration Judge may
be rendered orally or in writing. If the decision is
in writing, the regulations state that “it shall be served
on the parties by first class mail to the most recent
address contained in the Record of Proceeding or
by personal service.” 8 C.F.R. § 1003.37(a). If the indivi-
dual is represented by counsel, the decision must be
served on the attorney of record. 8 C.F.R. § 1292.5(a).
Here, a written decision was served on Bachynskyy’s
counsel of record, albeit by regular mail that did not
arrive with haste. The BIA itself has recognized that
the presumption of delivery of regular mail is a weaker
one than the presumption that accompanies certified mail
and may be rebutted with evidence that the alien did
not receive the notice. See Matter of M-R-A-, 24 I. & N. Dec.
665, 673-74 (BIA 2008); see also Dakaj v. Holder, 580 F.3d
18 No. 10-2793
479, 482 (7th Cir. 2009). But this is not a case where abso-
lutely no notice was received. Even if there were a regula-
tory violation, Bachynskyy’s counsel at the time did
receive notice prior to the bond deadline, and Bachynskyy
did not place in the record below any affidavits or evidence
saying that he himself was unaware of the bond
deadline, or why exactly he was unable to meet that
deadline. See Derezinski v. Mukasey, 516 F.3d 619, 621 (7th
Cir. 2008) (noting that due process required only efforts
reasonably calculated to notify party to satisfy constitu-
tional notice requirement). And there is no explanation
as to why a late attempt to pay the bond was unsuccessful,
or what attempts were in fact made. Given the record
before us, we find that Bachynskyy has not raised a valid
due process claim.3
III. CONCLUSION
Given that the regulations now in place are not retro-
active and the petition does not raise a viable due
3
At oral argument, the government suggested that it was the
duty of immigration counsel (or, presumably, an unrepresented
noncitizen) to physically visit the immigration court to
check the non-electronic “docket” or case file, or call the
Executive Office for Immigration Review case information
ho tline on a da ily b a si s to c h eck fo r up dates.
See http://www.justice.gov/eoir/contact.htm (last visited
December 7, 2011). We decline to imply any such an affirmative
duty on immigration counsel or pro se noncitizens in the absence
of electronic notifications, and note that we do not rely on the
existence of the hotline or physical docket in finding that notice
was received in this case.
No. 10-2793 19
process claim, the petition for review is D ENIED in part
and D ISMISSED in part.
12-15-11