On Petition for Review of an Order of Removal of the Board of Immigration Appeals U.S. Department of Justice Executive Office for Immigration Review (BIA No. A71-346-048).
The opinion of the court was delivered by: Garth, Circuit Judge
Argued: Monday, May 15, 2006
Before: McKEE and GARTH, Circuit Judges, and LIFLAND,*fn1 District 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.
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. §1231(b)(3)(B)(ii).*fn2
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 ...