Romanishyn v. Attorney General of U.S.

455 F.3d 175

Vasiliy Ostapovich ROMANISHYN, Petitioner, v. ATTORNEY GENERAL OF the UNITED STATES, Respondent.

No. 05-3141.

United States Court of Appeals, Third Circuit.

Argued May 15, 2006.

Filed July 20, 2006.

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Craig R. Shagin, Esq., [Argued], The Shagin Law Group LLC, Harrisburg, PA, Attorney for Petitioner.

Thomas A. Marino, Esq., Daryl F. Bloom, Esq., [Argued], United States Attorney's Office, Middle District of Pennsylvania, Harrisburg, PA, Attorney for Respondent.

Before McKEE and GARTH, Circuit Judges, and LIFLAND,^* District Judge.

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 PA. CONS. STAT. ANN. § 3502(a). For the first conviction, which occurred in the York County Court of Common Pleas on July 1, 2003, he was sentenced to 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. § 123 1(b)(3)(B)(ii).¹ 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 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.

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 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.

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.

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, 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...