Yelena Tsymbalenko; Aleksey Tsymbalenko v. John Ashcroft, Attorney General of the United States

NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 01-3564
___________________
YELENA TSYMBALENKO;
ALEKSEY TSYMBALENKO, Petitioners
v.
JOHN ASHCROFT, ATTORNEY GENERAL OF
THE UNITED STATES, Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Board No. A78726981)
_______________________________________
Argued: April 26, 2002
Before: BECKER, Chief Judge, SCIRICA and RENDELL
Circuit Judges.
(Filed: June 14, 2002)
TATIANA S. ARISTOVA, ESQUIRE (ARGUED)
Law Offices of John J. Gallagher
1760 Market St., Suite 1100
Philadelphia, PA 19103
Counsel for Petitioners
ROBERT D. McCALLUM, JR., ESQUIRE
Assistant Attorney General
Civil Division
TERRI J. SCADRON, ESQUIRE
Senior Litigation Counsel
Office of Immigration Litigation
WILLIAM C. MINICK, ESQUIRE (ARGUED)
ETHAN B. KANTER, ESQUIRE
LYLE D. JENTZER, ESQUIRE
United States Department of Justice
Civil Division
Office of Immigration Litigation
1331 Pennsylvania Ave., NW, Suite 700S
Washington, DC 20530
Transcribed by: Tracey J. Williams, CET
(Proceedings recorded by electronic sound recording;
transcript provided by AAERT-certified transcriber.)
_______________________
BENCH OPINION
_______________________

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BECKER, Chief Judge.
(The following is the bench opinion of the Court in
the above-captioned matter:)
THE HONORABLE JUDGE BECKER: I have conferred with
the panel, and the panel, having studied this matter, grants
the motion to dismiss the appeal for want of appellate
jurisdiction. We are satisfied that the jurisdiction of this
Court is squarely controlled by the plain text of Section
1249(a)(b)(5)(C), which provides that an in absentia removal
order may be rescinded only upon a motion to reopen; we
believe that we are also controlled by Marrero v. INS, 990
Fed.2d 772, Third Circuit, 1993, that a petition for review
an in absentia deportation order is not proper where the
alien had failed to file a motion to reopen the deportation
order. Now, we are aware that one has now been filed, but
that fact subsumes what is the animating spirit of both the
statute and Marrero case, that the petitioner must exhaust
administrative remedies; under these circumstances,
petitioner has not exhausted them. And we have no idea what
the Board will do: The Board may very well grant the motion
to reopen, and this Court has made some remarks on the record
that it has no objection if Ms. Aristova communicates to the
Board.
We are also satisfied that there would be no
difference, given the clear, unequivocal proof of notice
required for service, whatever the standard of review. We
are, should we reach the merits, concerned about the sloppy
manner in which the form was filled out by the Immigration
Judge.
At all events, we are satisfied that we lack

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jurisdiction and, accordingly, the appeal will be dismissed.
The Clerk will arrange for a transcript of this bench
opinion, which will be a non-precedential opinion.
Judge Scirica, anything to add or do you concur?
THE HONORABLE JUDGE SCIRICA: I concur.
JUDGE BECKER: Judge Rendell?
THE HONORABLE JUDGE RENDELL: Yes, I concur as well.
JUDGE BECKER: Thank you very much.
(Bench opinion concluded.)
_______________________________
TO THE CLERK:
Please file the foregoing Bench Opinion.
BY THE COURT:
/s/ Edward R. Becker
Chief Judge

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