Aleksandr Chmakov; Nadejda Chmakova Denis Chmakov v. J. SCOTT BLACKMAN, As District Director of the Immigration

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-2004
ALEKSANDR CHMAKOV;
NADEJDA CHMAKOVA
DENIS CHMAKOV,
Appellants
v.
J. SCOTT BLACKMAN, As
District Director of the Immigration
and Naturalization Service
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 00-cv-02128)
District Judge: Honorable Ronald L. Buckwalter
Submitted Under Third Circuit LAR 34.1(a)
February 15, 2005
Before: SLOVITER, AMBRO and ALDISERT, Circuit Judges
(Filed February 24, 2005 )
OPINION

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1 Denis Chmakov was a minor when the Chmakovs filed their habeas petition in April
2000 and was included as a dependent on his parents’ asylum application. He has since
turned twenty-one and thus became eligible to file his own asylum claim. His order of
removal was reopened by the Board of Immigration Appeals (“BIA”) in July 2003 and
remanded to the Immigration Court, where his claim is still pending.
2As a result of the Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat.
2135 (2002), the INS has ceased to exist as an agency within the Department of Justice,
and its enforcement functions have been transferred to the Department of Homeland
Security.
2
AM BRO, Circuit Judge
Appellants Aleksandr Chmakov, Nadjeda Chmakova, and Denis Chmakov1 (the
“Chmakovs”) appeal the District Court’s denial of their petition for a writ of habeas
corpus. For the reasons set forth below, we affirm the District Court.
I. Factual and Procedural History
Because we write solely for the parties, we do not recite the facts underlying the
Chmakovs’ asylum claim. We do, however, set out the lengthy procedural history of this
matter as it is relevant to our determination here.
Aleksandr and Denis Chmakov entered the United States on non-immigrant tourist
visas in 1994. Nadjeda Chmakova followed them, arriving in this country with the same
type of visa in 1995. The Immigration and Naturalization Service (“INS”)2 initiated
removal proceedings against the Chmakovs in May 1998. An immigration judge (“IJ”)
held a hearing on the Chmakovs’ applications for asylum and withholding of removal and
denied these applications in January 1999.
The Chmakovs timely appealed the IJ’s denial of relief to the BIA. They retained

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3On August 22, 2000, the Chmakovs did file, through new counsel, an untimely
petition for review of the BIA’s January 14, 2000 decision. We dismissed this petition
for lack of jurisdiction on February 13, 2001.
3
new counsel, Jewls Rogowska, to prosecute their appeal. Rogowska filed an untimely
brief with the BIA in support of the Chmakovs’ appeal. The BIA rejected the brief and
denied Rogowska’s subsequent motion to file a late brief. The BIA nonetheless reached
the merits of the Chamkovs’ claims and, on January 14, 2000, affirmed the IJ’s decision.
The Chmakovs did not file a timely petition for review of that decision with this Court.3
The BIA remanded the matter to the IJ to set both a bond and a voluntary departure date.
The IJ then granted the Chmakovs voluntary departure by April 24, 2000.
On March 28, 2000, the Chmakovs’ new counsel, attorneys at the Law Offices of
John J. Gallagher (the “Gallagher firm”), filed a motion to reopen and reconsider with the
BIA. The motion was based on claims of (1) ineffective assistance of counsel and (2)
changed country conditions in Uzbekistan, the Chamkovs’ native country. While this
motion was pending, the Chamkovs’ period of voluntary departure expired, resulting in a
final order of removal. On April 24, 2000, the last day of their voluntary departure
period, the Chmakovs filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C.
§ 2241, in the Eastern District of Pennsylvania.
The District Court dismissed the Chmakovs’ petition for lack of subject matter
jurisdiction. W e subsequently reversed, holding that the District Court had jurisdiction.
See Chmakov v. Blackman, 226 F.3d 210, 216 (3d Cir. 2001). We also remanded for

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4An alien moving to reopen based on an ineffective assistance of counsel claim must:
(1) file an affidavit in support of the motion that attests to the relevant facts and includes
“a statement that sets forth in detail the agreement that was entered into with former
counsel with respect to the actions to be taken on appeal and what counsel did or did not
do in this regard”; (2) inform former counsel of the allegations and give former counsel
an opportunity to respond; and (3) file a complaint against former counsel with the
appropriate disciplinary authority or, if no complaint is filed, provide a reasonable
explanation of the decision not to file. Lu v. Ashcroft, 259 F.3d 127, 132–34 (3d Cir.
2001) (internal quotation omitted) (holding that the BIA’s three-prong test established in
Lozada was not an abuse of the BIA’s discretion).
4
consideration of the merits of the Chmakovs’ claim that they were denied due process due
to the ineffective assistance of their counsel, Rogowska, in failing to file a timely brief
with the BIA in connection with their appeal. Id.
In the meantime, the Chmakovs’ motion to reopen was also making its way
through the administrative process. The BIA denied the motion in February 2001,
holding that the Chmakovs had not complied with at least one of the requirements set out
in Matter of Lozada, 19 I. & N. Dec. 637, 638–39 (BIA 1988), aff’d 857 F.2d 10 (1st
Cir.), for establishing an ineffective assistance claim.4 In particular, the BIA found that
the Chmakovs had not filed a disciplinary complaint against Rogowska with the
appropriate authorities, nor had they explained their failure to do so. (The BIA also
rejected the Chmakovs’ argument regarding changed country conditions.) The Chmakovs
filed a timely petition for review of the BIA’s decision with this Court, and we denied
their petition because they “did not file a bar complaint [against Rogowksa]; nor did they
offer any reason for their failure to file such a complaint.” Chmakov v. Ashcroft, No. 01-

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5We have appellate jurisdiction to review the District Court’s final order pursuant to 28
U.S.C. § 1291.
5
1574, 2002 WL 31447626, at *1 (3d Cir. Nov. 4, 2002).
On remand, the District Court ruled on the merits of the Chmakovs’ ineffective
assistance claim. It denied the Chamkovs habeas relief because they had not met the
Lozada requirements. The Chmakovs’ appeal of that decision is now before us.5
II. Analysis
Our review of the District Court’s denial of habeas relief is de novo. See Bamba
v. Riley, 366 F.3d 195, 198 (3d Cir. 2004). The Chmakovs argue that the District Court
erred in denying them habeas relief, contending that, because they are able to demonstrate
prejudice due to their former counsel’s failure to file a timely brief with the BIA in
support of their appeal, they have established a due process violation and their failure to
comply with the third Lozada requirement—the filing of a bar complaint or explanation
of the failure to do so—should therefore be excused. Our Court has already rejected this
argument in denying the Chmakovs’ petition for review of the BIA’s denial of their
motion to reopen their proceedings based on Rogowska’s alleged ineffective assistance.
See Chmakov, 2002 WL 31447626, at *1 (rejecting the Chmakovs’ argument that, under
our decision in Lu, 259 F.3d at 134, they were not required to file a disciplinary
complaint, and denying their petition for review because they had not offered any
explanation of their failure to file such a complaint).

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6In Filsaime, the Second Circuit stated that § 1252(d)(2) limits the jurisdiction of
federal courts. 393 F.3d at 318. We do not, however, express a view as to whether the
res judicata principles codified in that provision act as a jurisdictional bar here. We
merely hold that § 1252(d)(2) prevents us from revisiting our prior decision (on an
identical issue) in this case.
7Indeed, the Chmakovs merely state that they “respectfully disagree with this Court’s
current position on the Lozada third-prong requirement as it applies to the facts of their
case.” (Br. at 20). The Chmakovs have still failed to provide any explanation of their
failure to file a disciplinary complaint against Rogowska.
8Because we decide on this ground, we need not reach the Government’s argument that
habeas review in this case was precluded by the availability of direct review.
6
Basic res judicata principles lead against our revisiting this decision and we are in
fact statutorily barred from doing so. The Immigration and Nationality Act, as amended
by the Illegal Immigration Reform and Responsibility Act of 1996, prevents us from
reviewing a final order of removal if “another court has [] decided the validity of that
order, unless the reviewing court finds that the petition presents grounds that could not
have been presented in the prior judicial proceeding or that the remedy provided by the
prior proceeding was inadequate or ineffective to test the validity of the order.” 8 U.S.C.
§ 1252(d)(2); see Filsaime v. Ashcroft, 393 F.3d 315, 318 (2d Cir. 2004) (per curiam)
(holding that § 1252(d)(2) applies to habeas proceedings).6 We upheld the validity of the
final order of removal in this case when we denied the Chmakovs’ petition for review,
and the Chmakovs have presented no new grounds in this appeal unavailable for
presenting in that proceeding.7 Therefore, we again reject the Chmakovs’ argument that
they are entitled to relief based upon ineffective assistance of counsel.8

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7
Although the Chmakovs acknowledge that they “only raised a claim of
ineffectiveness on the part of predecessor counsel Rogowska in their habeas petition,”
(Br. at 11 n.6), they also appear to argue that they are entitled to relief because the
conduct of the Gallagher firm in prosecuting their case amounted to ineffective
assistance. We cannot, however, reach the merits of this argument because it was not
raised at any point during the proceedings before the BIA. See 8 U.S.C. § 1252(d)(1) (“A
court may review a final order of removal only if the alien has exhausted all
administrative remedies available to the alien as of right.”); see Duvall v. Elwood, 336
F.3d 228, 231 (3d Cir. 2003) (applying § 1252(d)(1) to habeas proceedings). We also
note that the Chmakovs do not allege that they have met any of the Lozada requirements
with regard to their former counsel at the Gallagher firm.
III. Conclusion
Thus, we affirm the District Court’s denial of the Chmakovs’ petition for a writ of
habeas corpus.

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