Artur Chmielewski v. Atty Gen USA

Filing 3110146060

09-3077

Case: 09-2087

Document: 003110146060

Page: 1

Date Filed: 05/17/2010

NOT PRECEDENTIAL U N IT E D STATES COURT OF APPEALS F O R THE THIRD CIRCUIT ___________ N o s . 09-2087 & 09-3077 ___________ A R T U R CHMIELEWSKI, Petitioner v. A T T O R N E Y GENERAL OF THE UNITED STATES, R espondent ____________________________________ O n a Petition For Review of an Order o f the Board of Immigration Appeals A g e n c y No. A098-163-767 Im m ig ra tio n Judge: Rosalind K. Malloy ___________________________________ S u b m itte d Pursuant to Third Circuit LAR 34.1(a) M a rc h 17, 2010 B e f o re : SLOVITER, JORDAN and GREENBERG, Circuit Judges (O p in io n filed: March 24, 2010) ___________ O P IN IO N ___________

P E R CURIAM P e titio n e r Artur Chmielewski, a native and citizen of Poland and a gay man, e n ter e d the United States in March of 2003 without being admitted or paroled. He is re m o v a b le under Immigration & Nationality Act ("INA") § 212(a)(6)(A)(i), 8 U.S.C. §

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1 1 8 2 (a)(6)(A)(i). Chmielewski filed a timely application for asylum under INA § 208(a), 8 U.S.C. § 1158(a), withholding of removal under INA § 241(b)(3), 8 U.S.C. § 1 2 3 1 (b)(3 ) , and protection under the Convention Against Torture, 8 C.F.R. §§ 1208.16(c), 1 2 0 8 .1 8 , claiming that he was persecuted in Poland on the basis of his sexual orientation. Chmielewski most recently was employed in Poland as a bartender. Both in his a p p lica tio n and testimony, he asserted that he had many times been the victim of hate c rim e s; he described numerous attacks and beatings which he believed were motivated by a n ti-g a y bias, and serious injuries he sustained as a result. He also submitted medical d o c u m e n ta tio n and articles published by human rights groups describing attacks on gay m e n outside of gay bars and clubs in Poland. A November of 2006 Amnesty International R e p o rt on Poland, for example, noted that the Law and Justice Party ("PiS") came to p o w e r in September of 2005, and, after that, homophobic statements by public officials in c re a se d dramatically. A.R. 406. Judicial authorities declined to prosecute on the ground th a t the homophobic statements were not "threatening or encouraging to crime." Id. The 2005 Country Report on Human Rights Practices in Poland noted that gay rig h ts activists engaged in a peaceful demonstration were attacked reportedly by members o f the All Poland Youth League, who threw eggs and rocks, and made verbal threats that w e re both homophobic and anti-Semitic. A.R. 448. Sixty-eight of the gay rights activists w ere arrested and interrogated before being released. The violent counter-demonstrators w e re only asked for identification. See id.

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T h e government responded by submitting articles of its own, which discussed the s u c c e s s e s of the gay rights movement in Poland since the fall of the communist g o v e rn m e n t. One article noted Warsaw's "lively gay tradition" dating back to the e ig h te e n th century, A.R. 459, and a July of 2005 article from the Travel section of Gay T im e s, Great Britain's well-known adult gay male magazine, gave Poland, a member of th e European Union, 3½ "pink stars," out of a possible 5, for being tolerant and even a c ce p tin g , A.R. 466. See also A.R. 468-69 (explaining the "pink star" system and noting th a t the extra half-star indicates that there is a surprising level of tolerance and freedom d esp ite the lack of positive legal protection). F o llo w in g a merits hearing on January 24, 2008, at which Chmielewski was re p re se n te d by current counsel, Daniel Sansoni, Esquire, the Immigration Judge ("IJ") d e n ie d relief. In a 39-page oral decision, the IJ concluded that there was a lack of c r e d ib l e evidence to support Chmielewski's claim that the injuries he sustained were as a re su lt of his sexual orientation. The IJ concluded that Chmielewski's evidence did not s u p p o rt a nexus between his injuries and his sexual orientation, and his country evidence s u p p o rte d a conclusion that there was discrimination in Poland on the basis of sexual o rien tation but not persecution. The IJ also faulted Chmielewski for not providing letters f ro m family and friends or more specific medical documentation in support of his a p p lic a tio n , which she concluded might have helped him credibly establish his claim. M r. Sansoni filed a Notice of Appeal, Form EOIR-26, with the Board of

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Im m ig ra tio n Appeals. In the space provided for listing the reasons for the appeal, he s ta te d : T h e Respondent was not given a just hearing since prejudicial documents w e re submitted to the Court. By information and belief, it is believed that th e Office of Chief Counsel believed respondent's asylum was frivolous. Respondent indicated that his application was never frivolous. The OCC o f f e re d no documentation suggesting frivolous application. However, they o f f e re d documentation stating the case was under investigation. Going to th e merits of the case, the immigration judge improperly denied a grant of a sylu m despite the facts and law clearly in the benefit of the respondent. A .R . 78. After the question, "Do you intend to file a separate written brief or statement after f ilin g this Notice of Appeal," Sansoni marked "Yes." A.R. 78. The following " W A R N IN G " was listed under that question: "If you mark `Yes' in item # 8, you will be e x p e cte d to file a written brief or statement after you receive a briefing schedule from the B o a rd . The Board may summarily dismiss your appeal if you do not file a brief or s ta te m e n t within the time set in the briefing schedule." A.R. 78. The Board then issued a b rie f in g schedule, which set a deadline for filing the separate written brief or statement. The briefing schedule notice again warned that, if it was indicated on Form EOIR-26 that a separate written brief or statement would be filed, it was "expected." A.R. 72. Failure to file might result in summary dismissal pursuant to 8 C.F.R. § 1003.1(d)(2)(i)(E). See id . C h m ie le w s k i retained someone new to file his brief. That individual, Reverend R o b ert Vitaglione, did not follow through. In its March 17, 2009 decision, the Board 4

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su m m arily dismissed Chmielewski's appeal pursuant to 8 C.F.R. § 1003.1(d)(2)(i)(E), b e c au s e he failed to file a separate written brief or statement after indicating on the Notice o f Appeal that one would be filed. Chmielewski filed a timely pro se petition for review o f this decision, resulting in the appeal docketed at C.A. No. 09-2087. He also retained S tep h e n S. Santo, Esquire, to file a motion for reconsideration with the Board. On April 2 0 , 2009, Santo filed that motion, and in it he contended that the Board should not have s u m m a rily dismissed Chmielewski's appeal. Citing Bhiski v. Ashcroft, 373 F.3d 363, 3 6 7 -6 8 (3d Cir. 2004), he contended, among other things, that a brief is optional rather th a n mandatory. A.R. 14. Moreover, Chmielewski's case was not complex and his s ta te m e n t put the Board on notice of what was at issue in his case. See id. at 15-16. The g o v ern m en t filed written opposition to the motion to reconsider. In a decision dated June 24, 2009, the Board denied Chmielewski's motion to re c o n sid e r as untimely because it was not filed within 30 days. Chmielewski's original a tto rn e y, Mr. Sansoni, returned to the case and filed a timely petition for review of that d e c is io n , resulting in the appeal docketed at C.A. No. 09-3077. Our Clerk consolidated th e petitions for review. We previously denied Chmielewski's motion for a stay of re m o v a l and the government's motion for summary affirmance in C.A. No. 09-3077. W e will deny the consolidated petitions for review. We have jurisdiction to review b o th final orders of removal under 8 U.S.C. § 1252(a)(1), (b)(1). Chmielewski raises th re e contentions on appeal: (1) the IJ's adverse credibility determination is not supported

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b y substantial evidence, where the IJ was consistently misled by the government c o n c ern in g an unrelated pending government investigation into frivolous asylum a p p lica tio n s, and where the IJ incorrectly weighed his testimony and incorrectly d e ter m in e d that Poland does not persecute homosexuals; (2) the Board improperly su m m a rily dismissed his appeal for failure to file a brief; and (3) the Board abused its d isc re tio n in denying his motion for reconsideration. Chmielewski asserts the failure to f ile a separate written brief or statement was not his fault, and the motion for re c o n sid e ra tio n should not have been denied as untimely because the government did not ra is e the timeliness issue. See Petitioner's Brief, at 9-10. Chmielewski seeks re in sta tem e n t of his appeal to the Board, or, in the alternative, he asks that we review his c la im for asylum. T h e government counters that the Board acted within its discretion when it su m m a rily dismissed Chmielewski's appeal because he did in fact fail to submit a s e p a ra te written brief or statement after checking the box on the Notice of Appeal that in d ica ted he intended to file one. Moreover, the Board did not abuse its discretion in d e n yin g the motion for reconsideration because it was in fact untimely filed by four days. W e will deny the petition for review docketed at C.A. No. 09-3077. Under 8 C .F .R . § 1003.2(b)(2), a motion to reconsider must be filed within 30 days after the date o f the Board's decision. See also 8 U.S.C. § 1229a(c)(6)(B). Chmielewski's motion to re c o n sid e r was received on April 20, 2009, which was more than 30 days after the

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B o a rd 's March 17, 2009 decision. Review of the Board's denial of a motion to reopen or m o tio n for reconsideration is for abuse of discretion only. See Sevoian v. Ashcroft, 290 F .3 d 166, 174 (3d Cir. 2002). See also Immigration & Nationality Serv. v. Doherty, 502 U .S . 314, 323 (1992). "Discretionary decisions of the [Board] will not be disturbed u n le ss they are found to be arbitrary, irrational, or contrary to law." Tipu v. Immigration & Nationality Serv., 20 F.3d 580, 582 (3d Cir. 1994) (internal quotations and citation re m o v e d ) . The Board's timeliness determination pursuant to 8 C.F.R. § 1003.2(b)(2) was n o t arbitrary, irrational, or contrary to law. Although an alien may file either a motion for reconsideration or a motion to re o p e n when challenging counsel's performance, Matter of Lozada, 19 I. & N. Dec. 637 (B IA 1988), and, construed as a motion to reopen, Chmielewski's April 20, 2009 su b m iss io n would have been timely filed, see 8 C.F.R. § 1003.2(c)(2) ("a party may file o n ly one motion to reopen ... (whether before the Board or the Immigration Judge) and th a t motion must be filed no later than 90 days after the date on which the final a d m in is tra tiv e decision was rendered"), we do not fault the Board for not giving C h m ielew sk i the benefit of the doubt with respect to how he styled his motion. Mr. S a n to , in that untimely motion to reconsider, stated only that, after proceedings in Im m ig ra tio n Court came to an end, Chmielewski "attempted to change c o u n se l/re p re se n ta tio n and it is unclear as to whether [his] then new appeal counsel su b m itted both an EOIR-27 representation form and/or brief to the BIA." A.R. 13. Mr.

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S a n to did not argue ineffective assistance of counsel to the Board in the motion to re c o n sid e r. Nor did Chmielewski comply with the procedural requirements for making s u c h a claim.1 The Board would not have realized from the motion to reconsider that R e v e re n d Vitaglione performed deficiently by failing to file a separate written brief or s ta te m e n t, as Chmielewski now asserts, see Petitioner's Brief, at 11-12. Accordingly, the Board did not abuse its discretion in treating Chmielewski's m o t io n as one for reconsideration only and denying it as untimely. Chmielewski also c o n te n d s that the government opposed the motion to reconsider not on the basis of u n tim e lin e s s but by arguing that Bhiski, 373 F.3d 363, could be distinguished. Because C h m ie le w s k i cites no authority for his assertion that the Board lacks authority to dismiss a m o tio n to reconsider on the basis of untimeliness if the government opposes the motion o n some other ground, we find no abuse of discretion in this regard either. The g o v ern m en t did not affirmatively waive the timeliness objection or join in Chmielewski's m o tio n . Cf. 8 C.F.R. § 1003.2(c)(3)(iii) (addressing jointly filed motions to reopen). W e turn then to the petition for review docketed at C.A. No. 09-2087, which we w ill also deny. The regulation provides that: "A single Board member or panel may

The Board requires that a timely motion to reconsider or reopen based upon a claim of in e f fe c tiv e assistance of counsel should be supported by an affidavit that sets forth the a g re e m e n t that was entered into with former counsel with respect to the actions to be ta k e n , and former counsel must be informed of the allegations and allowed the o p p o r tu n ity to respond. Matter of Lozada, 19 I. & N. Dec. at 638. The alien must also f ile a complaint with the bar, but this is not an absolute requirement under Lu v. Ashcroft, 2 5 9 F.3d 127, 134 (3d Cir. 2001). 8

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s u m m a rily dismiss any appeal or portion of any appeal in any case in which: *** (E) The p a rty concerned indicates on Form EOIR-26 or Form EOIR-29 that he or she will file a b rie f or statement in support of the appeal and, thereafter, does not file such brief or s ta te m e n t, or reasonably explain his or her failure to do so, within the time set for filing." 8 C.F.R. § 1003.1(d)(2)(i)(E). Chmielewski was warned in both Form EOIR-26 and the B o a rd 's briefing schedule Notice that summary dismissal was a possibility in the c irc u m s ta n c e where the box indicating that a separate written brief or statement will be f ile d is checked and no separate written brief or statement is filed. Because Chmielewski d o es not challenge the regulation on due process grounds, we review the Board's a p p lic a tio n of it in his case for abuse of discretion. See Singh v. Gonzales, 416 F.3d 1 0 0 6 , 1009 (9th Cir. 2005); Rioja v. Ashcroft, 317 F.3d 514, 515 (5th Cir. 2003). In support of its decision, the Board, citing 8 C.F.R. § 1003.1(d)(2)(i)(E), noted th a t: (1) Chmielewski checked the box on the Notice to Appeal stating that he would file a separate written brief or statement; (2) he had until April 28, 2008 to submit a separate w ritte n brief or statement in support of his appeal; (3) the record did not contain a s e p a ra te written brief or statement; and (4) Chmielewski failed to offer an explanation for h is failure to timely submit the promised separate written brief or statement. In his brief, C h m ie le w s k i contends that it was not his fault that no separate written brief or statement w a s filed on appeal to the Board, but he did not comply with the Lozada procedural req u irem en ts or file a timely motion to reconsider or motion to reopen with the Board

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a lle g in g deficient performance by counsel or a representative. Moreover, the loss of c o n tin u ity in his case appears to have been caused by the decision to retain different c o u n s e l/r e p re s e n ta tio n after the proceedings in Immigration Court came to an end. Chmielewski next contends that his case is not complex and his Notice of Appeal, F o rm EOIR-26, put the Board on notice of what was at issue in his case. See Petitioner's B rie f , at 15-16. Having reviewed the record, we conclude that the Notice of Appeal, F o rm EOIR-26, does not adequately apprise the Board of the bases for the appeal. According to his Notice of Appeal, Chmielewski sought to raise a due process claim of an u n f a ir hearing and a claim challenging the IJ's weighing of the testimony and d e te rm in a tio n that the government of Poland does not persecute on the basis of sexual o rie n ta tio n or acquiesce in persecution by private actors. With respect to the claim of an unfair hearing, Chmielewski did not identify the p re ju d ic ia l documents referred to in the Notice of Appeal, which the government a lleg e d ly sought to introduce, nor did he identify with any specificity what aspects of his m e rits hearing were unfair. The basis of this contention of an unfair hearing is not at all a p p a re n t from the administrative record. The government sought a continuance early in th e proceedings due to an unspecified "pending investigation," A.R. 568, but that motion a lo n e was insufficient to render the hearing unfair. Moreover, the IJ was thorough in her re v ie w of Chmielewski's evidence, and she issued a comprehensive, reasonable decision, w h ic h discussed the evidence and the relevant legal issues. With respect to the merits of

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h is application for asylum, Chmielewski did not identify in his Notice of Appeal the s p e c if ic facts or law that should have resulted in a reversal of the Immigration Judge. Nor d id he remedy either of the deficiencies we have noted in his motion to reconsider. We th u s conclude that the Board acted within its discretion in summarily dismissing C h m ie le w s k i's appeal where he failed to submit a separate written brief or statement as h e indicated he would and the Notice of Appeal failed to apprise the Board adequately of th e bases for his appeal. See Rioja, 317 F.3d at 515.2 C h m ie le w s k i contends that, under Bhiski, 373 F.3d 363, a brief is optional rather th a n mandatory, but the Board's summary dismissal procedure only applies where the a lie n checks the box indicating that he intends to file a separate written brief or statement a n d then does not follow through. In Bhiski, we considered whether the alien properly e x h a u ste d his administrative remedies where he did not file a separate written brief or sta tem e n t. We held that the alien exhausted his administrative remedies by stating his is s u e adequately in his Notice to Appeal, and we therefore did not lack jurisdiction over th e petition for review. 373 F.3d at 367. Bhiski thus concerned the adequacy of an a lie n 's efforts to exhaust his administrative remedies and our jurisdiction over his petition f o r review, see id. at 368. It did not concern the Board's discretion to summarily dismiss a n appeal on procedural grounds, and thus is inapposite. F o r the foregoing reasons, we will deny the consolidated petitions for review. In addition, we are not empowered to conduct the de novo inquiry Chmielewski see k s. See, e.g., Gonzales v. Thomas, 547 U.S. 183, 186 (2006) (per curiam). 11
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