Ahmed Bhiski v. John Ashcroft, Attorney General of the United States the United States Bureau of Citizenship and Immigration Services
Docket: 03-3291
Court: Court of Appeals for the Third Circuit; July 2, 2004; Federal Appellate Court
Petitioner Ahmed Bhiski, a Tunisian citizen, seeks judicial review of the Board of Immigration Appeals (BIA) ruling that dismissed his appeal regarding an Immigration Judge's (IJ) decision to grant him voluntary departure and deny a motion to remand for status adjustment based on a marriage-related visa petition. Bhiski entered the U.S. on August 13, 1999, on an F-1 student visa but fell out of status after ceasing his studies. The Immigration and Naturalization Service (INS) issued a Notice to Appear on May 8, 2002, leading to a hearing on May 16, where Bhiski appeared pro se after being informed of his right to counsel.
During the hearing, the IJ assessed Bhiski's situation, including his potential marriage to Rose Mary Maturo. The IJ advised that marrying before his voluntary departure would complicate his ability to prove the marriage’s legitimacy for immigration purposes. The IJ outlined the process Bhiski would need to follow if he married, including the requirement to leave the U.S. and wait for a green card petition to be processed from Tunisia. The IJ emphasized that Bhiski must seek any extension of his voluntary departure before its expiration and imposed a bond of $6,500, warning that failure to comply would result in losing the bond and being barred from re-entry for several years. The IJ set Bhiski's voluntary departure date for July 1, 2002, allowing him 45 days to prepare for his departure. Bhiski acknowledged his understanding of the IJ’s explanations.
On June 12, 2002, Bhiski married Maturo, and the couple filed an I-130 visa petition on June 13. Following this, Bhiski appealed to the BIA on June 14, alleging due process violations by the IJ due to lack of counsel. After overstaying his departure date, he filed a Motion to Remand and Stay of Removal on January 28, 2003, to address his adjustment of status application. On July 7, 2003, the BIA dismissed his appeal, stating Bhiski failed to demonstrate how the alleged due process violations affected his hearing and did not provide adequate legal grounds. The BIA also denied the motion for remand, citing opposition from the Department of Homeland Security.
In his review petition, Bhiski contends that the BIA incorrectly dismissed his appeal regarding the IJ's due process violations, which included failing to assess his financial capacity for voluntary departure, not explaining the consequences of such departure, and proceeding without his attorney. Additionally, he argues that the BIA wrongly denied his remand motion, asserting that he met the Matter of Velarde-Pacheco criteria for cases involving marriages entered into post-proceedings.
The court must first determine its jurisdiction to review Bhiski's due process claims, with the Government arguing that his lack of a supporting brief for his BIA appeal constitutes an exhaustion failure, which is a jurisdictional prerequisite under Section 1252(d) of Title 8. Previous court rulings show a split on this issue: the Fifth and Eleventh Circuits have ruled that failure to submit a brief precludes jurisdiction, while the Ninth and First Circuits have suggested that such failure does not bar review if the alien attempted to appeal, albeit inadequately.
A ruling from a legal discussion indicates that requiring a brief to perfect a Board of Immigration Appeals (BIA) appeal would be excessively harsh in this instance, as Bhiski made some efforts to exhaust his remedies, even if those efforts were insufficient. The relevant regulation does not mandate the submission of a brief beyond the necessity to identify specific reasons for the appeal in the Notice of Appeal (Form EOIR-26 or Form EOIR-29). It requires the appellant to clearly state the findings of fact or conclusions of law being challenged and to cite supporting authority for questions of law. The regulation also allows the appellant to indicate their desire for oral argument and whether they will file a separate brief, implying that submitting a brief is optional.
The Notice of Appeal Form EOIR-26 reinforces this optional status by warning that failing to specify the factual or legal basis for the appeal may lead to summary dismissal unless specific details are provided in a timely separate brief. The use of "may" suggests that a brief is not required in all circumstances. The BIA has indicated that merely asserting errors in the immigration judge's findings is insufficient; clarity in presenting arguments is crucial. However, if the issues are not complex, a brief may not be necessary as long as the Notice of Appeal adequately informs the BIA of the issues at stake. In Bhiski's case, the Notice of Appeal effectively stated two key claims: a due process violation due to lack of effective legal representation and ineffective assistance of counsel, which sufficiently identified the grounds for appeal.
The Government argued that Bhiski's Notice of Appeal was deficient for not indicating the prejudice he suffered; however, it sufficiently informed the BIA of the issues being appealed. The adequacy of the Notice for administrative exhaustion is separate from its persuasiveness. The absence of a brief does not hinder the review of Bhiski's case, which is not overly complex. The court confirmed jurisdiction and addressed the merits of Bhiski's due process claim, noting that while aliens have some right to counsel at immigration hearings, Bhiski explicitly waived this right during the proceedings. Despite his final non-response to the Immigration Judge (IJ), the earlier affirmative responses indicated a clear waiver.
Even if the waiver were not established, there was no due process violation since the administrative record did not show any detrimental impact from proceeding without counsel or from a lack of explanation about the consequences of overstaying. The IJ's inquiries into Bhiski's family ties and fears of returning to Tunisia yielded no basis for relief, as Bhiski denied having relatives in the U.S. and expressed no fear of return, leaving him only eligible for voluntary departure.
Bhiski's assertion that he could have adjusted his status through a common law marriage to his girlfriend was deemed unconvincing. The Government argued that a common law marriage does not confer eligibility for a spouse visa, and Bhiski's own statements throughout the proceedings referred to his girlfriend rather than a spouse, undermining his claim.
Maturo's claim that she and Bhiski lived as a married couple is contradicted by her own timeline, as she only agreed to marry him in April 2002, shortly before a hearing on May 16, 2002, despite his initial proposal a year earlier. Bhiski's assertion that he was unaware of the implications of missing the voluntary departure date is also refuted; the Immigration Judge (IJ) explicitly warned him that marrying Maturo could be perceived as an attempt to evade deportation and outlined the process for seeking an extension of his departure. The IJ informed Bhiski that overstaying would result in the loss of his $6,500 bond and potential multi-year bans from reentry. The IJ's explanations were thorough, and despite jurisdiction to hear Bhiski's due process claims, the Board of Immigration Appeals (BIA) found no evidence of prejudice from the alleged deficiencies. Additionally, Bhiski had waived his right to counsel. Following this, on January 28, 2003, Bhiski filed a Motion to Remand and Stay of Removal based on a visa petition filed with Maturo, which could be granted under certain conditions, including timeliness and clear evidence of a bona fide marriage.
In Matter of Arthur, the Board of Immigration Appeals (BIA) ruled that a motion to reopen cannot be granted based solely on an unadjudicated relative petition resulting from a subsequent marriage. The Immigration and Naturalization Service (INS) opposed Bhiski's Motion to Remand, citing his ineligibility for adjustment of status due to his failure to depart by the specified date and his inability to provide clear evidence of a bona fide marriage. These reasons are classified as non-Matter of Arthur objections, supporting the BIA's determination that Bhiski is ineligible for relief under Matter of Velarde-Pacheco.
Bhiski's failure to depart by the voluntary departure date represents a procedural bar under the third prong of the Velarde-Pacheco framework, and the BIA referenced Matter of Shaar, which states that an alien who overstays a voluntary departure date while a motion to reopen is pending cannot qualify for suspension of deportation unless exceptional circumstances exist. His lack of clear and convincing evidence for a bona fide marriage corresponds with the fourth prong of the inquiry. The BIA noted that nothing in Velarde-Pacheco restricts the INS's opposition from overlapping with other factors as long as it does not rely on Matter of Arthur grounds.
Bhiski's argument for the BIA to investigate the good faith of the INS's opposition was also rejected, as Velarde-Pacheco does not require that the INS's opposition be in good faith. Therefore, as the INS's objections were non-Matter of Arthur based, the BIA correctly denied Bhiski's Motion to Remand.
The petition for review regarding Bhiski's case is denied in relation to both the due process appeal and the Motion to Remand. The Bureau of Citizenship and Immigration Services (formerly INS) is referenced as the initiating body of the proceedings. There is uncertainty regarding whether Bhiski's voluntary departure date has expired; he was permitted to depart within 30 days from a BIA order dated July 7, 2003. The specific date of Bhiski's marriage is noted as potentially unclear, but for this analysis, June 12, 2002, is assumed based on an I-130 visa petition. Bhiski raised three due process claims regarding the Immigration Judge's (IJ) actions: failure to confirm financial capability for departure, lack of explanation about voluntary departure consequences, and proceeding without counsel. The first claim was not presented to the BIA and is therefore not within jurisdiction for review. Although Bhiski's motion was presented as a Motion to Remand, it has been treated as a motion to reopen proceedings. The record shows that Bhiski's late departure disqualifies him from relief for ten years under relevant regulations. Additionally, evidence supporting the bona fide nature of Bhiski's marriage is dated after his voluntary departure order, raising further issues with his claims.
