Ahmed Bhiski v. JOHN ASHCROFT, Attorney General of the United States

PRECEDENTIAL
UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
NO. 03-3291
AHMED BHISKI,
Petitioner
v.
JOHN ASHCROFT, Attorney General of
the United States; THE UNITED
STATES BUREAU OF CITIZENSHIP
AND IMMIGRATION SERVICES,
Respondents
Petition for Review of an Order
of the Board of Immigration Appeals
(A79-728-986)
Argued May 3, 2004
Before: SLOVITER, FUENTES, and
BECKER, Circuit Judges
(Filed July 2, 2004)
Don W. Pak (Argued)
Philadelphia, PA 19102
Attorney for Petitioner
Peter D. Keisler
Assistant Attorney General
Civil Division
Linda S. Wernery
Senior Litigation Counsel
William C. Minick (Argued)
Attorney
Office of Immigration Litigation
United States Department of Justice
Washington, D.C. 20044
Attorneys for Respondent
OPINION OF THE COURT
SLOVITER, Circuit Judge.
Petitioner Ahmed Bhiski, a citizen
of Tunisia, petitions for review of the
decision of the Board of Immigration
Appeals (BIA) dismissing his appeal of the
Immigration Judge’s (IJ) grant of
voluntary departure and the BIA’s denial
of his Motion to Remand and Stay of
Removal for adjustment of status based on
a visa petition filed after Bhiski’s
marriage. We have jurisdiction to consider
the petition for review under 8 U.S.C. §
1252(a)(1).
I.
FACTS AND PROCEDURAL
HISTORY
Bhiski entered the United States on
August 13, 1999, and soon acquired an F-1
student visa. When he stopped attending
class at the Community College of
Philadelphia, thus violating his F-1 status,
the then-Immigration and Naturalization

-- 1 of 11 --

2
Service (INS)1 served him a Notice to
Appear on May 8, 2002. On May 16,
2002, Bhiski appeared before the IJ
without counsel. The IJ informed him that
“[Y]ou have a right to be represented by a
lawyer, but [neither] the United States
Government nor this Court will provide
that lawyer for you. If you want an
attorney, I can postpone this case and give
you time to seek an attorney. Do you
understand that?” A.R. at 93. Despite not
having an attorney present, Bhiski
responded “yeah” when asked if he wanted
to proceed on that day. A.R. at 93.
After having ascertained Bhiski’s
willingness to commence proceedings, the
IJ began eliciting information from him.
He asked Bhiski whether he had any
relatives in the United States and whether
he had any reason to fear returning to
Tunisia, and then the IJ stated that he was
“not authorized to permit [Bhiski] to
remain in the United States.” A.R. at 100.
When the IJ discovered that Bhiski had a
long-term girlfriend, Rose Mary Maturo,
he explained that it would be difficult to
convince the INS that his marriage was
bona fide if he married her sometime
before his voluntary departure date. The IJ
nonetheless explained Bhiski’s options in
the event that he did marry:
You go by the INS. There’s
a b i g o f f i c e [ i n
Philadelphia], and, you
know, show them the order,
say you have to leave by
July 1, I got married, can I
get an extension of the
voluntary departure. If they
say no, then you got to get
out of here and leave
because if you get married,
your girlfriend can petition
for you, in other words,
apply for you to get a green
card, but it takes a while,
and you would have to leave
in the meantime, return to
Tunisia and wait there
patiently, and then if it’s
granted, you would be
issued an immigrant visa.
A.R. at 102.
The IJ then explained that Bhiski
could not overstay his voluntary departure
date:
You can’t wait until the day
before your – my voluntary
departure expires and ask
for an extension because it
won’t be given. You have
to apply prior to the
expiration of it at the INS in
Philadelphia, and if they say
yeah, that’s okay, but if they
say no, you got to get out.
I’m also going to put a bond
on you in the amount of
$6,500. If you don’t leave
1 The INS is now the Bureau of
Citizenship and Immigration Services
within the Department of Homeland
Security. 6 U.S.C. § 271 (Supp. 2004).
Because the INS commenced the
relevant proceedings, we will use INS
herein.

-- 2 of 11 --

3
and you violate my order of
voluntary departure, the
money will not get returned
to whoever paid it. They
would lose that money, and
the deportation order would
be in effect, and if that
occurs, even if you got
married, you’re going to
probably be barred from
coming back to this country
for a number of years.
A.R. at 103. Bhiski indicated that he
understood the IJ’s explanations and
warnings. The IJ set Bhiski’s voluntary
departure date as July 1, 2002, giving him
45 days after the hearing to “wrap up [his]
affairs.” A.R. at 101.2
On June 12, 2002,3 shortly before
his departure date, Bhiski married Maturo,
and on June 13, 2002, the newly married
couple filed an I-130 visa petition on his
behalf based upon their m arital
relationship. A.R. 33-34. On June 14,
2002, Bhiski filed an appeal to the BIA,
claiming that the IJ violated his due
process rights by proceeding without
counsel. Bhiski then overstayed his
departure date, and subsequently filed a
Motion to Remand and Stay of Removal
on January 28, 2003 to determine his
application for the adjustment of status
based on his visa petition.
On July 7, 2003, the BIA dismissed
the appeal concerning the alleged due
process violations, stating Bhiski “did not
provide evidence on his notice to appeal of
how his hearing was prejudiced by these
alleged deficiencies. Furthermore,
[Bhiski] did not provide the BIA with a
brief detailing the factual and legal basis
of his claims. Accordingly, we will
dismiss” the appeal. A.R. at 2. The BIA
also denied the motion for remand, stating
that “[Bhiski’s] case does not meet the
requirements of Matter of Velarde . . .
because the Department of Homeland
Security . . . opposes his motion.” A.R. at
2 (citations omitted).
2 It is unclear from the
Administrative Record whether Bhiski’s
voluntary departure date has now expired
without extension. On July 7, 2003, the
BIA ordered that Bhiski be “permitted to
voluntarily depart . . . within 30 days
from the date of this order or any
extension beyond that time as may be
granted by the district director.” A.R. at
3. Whether or not Bhiski has sought
such an extension does not affect our
reasoning in this opinion.
3 The precise date of the marriage is
unclear. The certificate of marriage
issued by the Cherry Hill Township on
June 27, 2002 lists the “Date of
Marriage” as June 20, 2002. A.R. at 32.
However, the I-130 visa petition filed by
Maturo and Bhiski, and the letter
submitted by Maturo, list the date of
marriage as June 12, 2002. A.R. at 33,
42. As the date is irrelevant for the
purposes of discussion, we will assume
the June 12 date provided on the visa
petition is the actual one.

-- 3 of 11 --

4
In his petition for review, Bhiski
argues that the BIA erred in dismissing his
appeal because the IJ violated his due
process rights when the IJ (1) failed to
ensure that he was financially capable of
leaving under voluntary departure, (2)
failed to explain the consequences of
voluntarily departing, and (3) proceeded
with the hearing despite the absence of an
attorney for Bhiski. Bhiski further argues
that the BIA erred in denying his motion
for remand because he met the test,
formulated in Matter of Velarde-Pacheco,
23 I. & N. Dec. 253 (BIA 2002), for
determining immigration proceedings
based on a marriage entered into after the
commencement of proceedings.
II.
DISCUSSION
A. Due Process Appeal
Before turning to the merits of
Bhiski’s due process claims, we must
decide whether we have the jurisdiction to
do so. The Government argues that we
lack jurisdiction because Bhiski’s failure
to provide a brief in support of his appeal
to the BIA, and the cursory statement he
provided on the Notice of Appeal to the
BIA, amount to a failure to exhaust his
administrative remedies. Exhaustion is a
jurisdictional prerequisite, as Section
1252(d) of Title 8 of the United States
Code states, “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 . . . .” Id.
Whether the failure to file a brief in
support of a Notice of Appeal before the
BIA bars our review is an issue of first
impression for this court.
Four courts of appeals have
previously decided the issue, with two
courts on each side of the jurisdictional
fence. The Court of Appeals for the Fifth
Circuit held that it was without jurisdiction
to hear an appeal that otherwise appeared
as though it had substantial merit because
the alien’s failure to provide a brief or
exceed “generalized statements of the
reasons” for the appeal before the BIA was
tantamount to a failure to exhaust his
administrative remedies. Townsend v.
INS, 799 F.2d 179, 181-82 (5th Cir. 1986)
(internal quotation marks and citation
omitted). The Court of Appeals for the
Eleventh Circuit followed the example of
the Fifth Circuit and found persuasive the
argument that “because the petitioners
failed to perfect their appeal to the Board,
judicial review is barred because they have
not exhausted their administrative
remedies.” Bayro v. Reno, 142 F.3d 1377,
1378-79 (11th Cir. 1998).
The Courts of Appeals for the Ninth
and First Circuits disagree. See Ladha v.
INS, 215 F.3d 889 (9th Cir. 2000);
Athehortua-Vanegas v. INS, 876 F.2d 238
(1st Cir. 1989). Athehortua-Vanegas is the
more comprehensive of these decisions. It
observed that in failing to file a brief to
accompany the notice of appeal, the alien
“did not overlook the Board, or ignore it,
or attempt to appeal directly to the courts
from the IJ’s order. He . . . [merely]
stumbled on [the step].” Athehortua-
Vanegas, 876 F.2d at 240. The court held
that because the alien actually availed

-- 4 of 11 --

5
himself, however clumsily, of the appeal,
he exhausted the remedy, and no longer
had administrative recourse. Id.
Even if we were to follow the
Eleventh and Fifth Circuits in holding that
a brief is required to perfect the BIA
appeal, it would be unduly harsh to so hold
in this case where Bhiski made some effort
to exhaust, albeit insufficient. However,
we will not so hold because there is
nothing in the regulatory scheme that
compels that conclusion.
First, the regulation governing the
Notice of Appeal does not require the
filing of a brief beyond identifying the
specific reasons for the appeal. The
applicable regulation states,
The party taking the appeal
must identify the reasons for
the appeal in the Notice of
Appeal (Form EOIR-26 or
Form EOIR-29) or in any
attachments thereto, in order
to avoid summary dismissal
p u r s u a n t t o §
1 0 0 3 . 1 ( d ) ( 2 ) ( i ) . T h e
statement must specifically
identify the findings of fact,
the conclusions of law, or
both, t h a t ar e bein g
challenged. If a question of
law is presented, supporting
authority must be cited. If
the dispute is over the
findings of fact, the specific
facts contested must be
identified.
8 C.F.R. § 1003.3(b).
In addition, that regulation provides
that the appellant “must also indicate in the
Notice of Appeal . . . whether he or she
desires oral argument before the Board and
whether he or she will be filing a separate
written brief or statement in support of the
appeal.” Id. The fact that the regulation
requires the alien to indicate whether s/he
will be filing a brief certainly suggests that
filing a brief is optional rather than
mandatory.
Second, the Notice of Appeal Form
EOIR-26 itself indicates the optional
nature of the brief. The form includes a
warning provision in box four, which
states:
The failure to specify the
factual or legal basis for the
appeal may lead to summary
dismissal without further
notice, unless you give
specific details in a timely
separate written brief or
statement filed with the
Board.
Form EOIR-26 (emphasis added).
Third, the inclusion of the word
“may” suggests that the agency believes
that a brief is not necessary in all cases. In
another case, the BIA stated:
It is . . . insufficient to
merely assert that the
i m m i g r a t i o n j u d g e
improperly found that
deportability had been
established or denied an
application for relief from

-- 5 of 11 --

6
deportation. . . . [I]t should
be clear whether the alleged
impropriety in the decision
lies with the immigration
judge’s interpretation of the
facts or his application of
legal standards. . . .
Although the regulations
only refer to the reasons that
must be stated on the Notice
of Appeal, the contentions
made by an alien on appeal
are of course best presented
in a brief setting forth his
arguments. Depending on
the complexity of the issues
raised, a brief may be
essential to an adequate
presentation of the appeal.
In all cases, however, the
reasons for an appeal must
be meaningfully identified
on the Notice of Appeal.
Matter of Valencia, 19 I. & N. Dec. 354,
355 (BIA 1986) (emphasis added).
This suggests that if the issue is not
complex, no brief is required as long as the
notice of appeal does precisely what it is
intended to do – place the BIA on notice of
what is at issue.
In the instant case, the Notice of
Appeal filed by Bhiski does that. It stated,
(1) Due to conditions of
detainment, [Bhiski] was
unable to obtain effective
l e g a l r e p r e s e n t a t i o n .
Therefore, [he] claims a
violation of due process.
(2) [Bhiski] was only
permitted to make collect
calls from prison, and spoke
to an acquaintance of
another inmate about hiring
an attorney. [Bhiski] was
led to believe that an
attorney was, in fact,
retained, how eve r, no
attorney ever appeared at
[his] removal hearing.
Therefore, [he] c laims
ineffective assistance of
counsel.
A.R. at 88 (emphasis added).
Alth ough t h e G o v e r n m e nt
contended at oral argument that this Notice
of Appeal was insufficient because it
failed to aver the prejudice Bhiski
suffered, it certainly was sufficient to
make the BIA aware of precisely what
issues were being appealed. Whether or
not the Notice of Appeal was sufficiently
compelling to convince the BIA has
nothing to do with whether Bhiski
adequately presented the appeal for
administrative exhaustion purposes.
Bhiski’s claim is not so complex that it
would have required a brief. Therefore,
we hold that the failure to provide a brief
does not foreclose our review.
Having decided we have the
jurisdiction to do so, we turn now to the

-- 6 of 11 --

7
merits of Bhiski’s due process claim.4 “It
is well-established that an alien at an
immigration hearing has some form of
right to counsel.” Ponce-Leiva v.
Ashcroft, 331 F.3d 369, 374 (3d Cir.
2003). However, we need not delve into
the complexity that lays underneath the
phrase “some form of right” because in the
instant case, Bhiski expressly waived any
such right, as shown in the following
exchange:
IJ: Mr. Bhiski, you have
a r i g h t t o b e
represented by a
lawyer, but [neither]
the United States
Government nor this
Court will provide
that lawyer for you.
If you want an
a t t o rne y, I c a n
postpone this case
and give you time to
seek an attorney. Do
you understand that?
Bhiski: Yes, sir.
IJ: D o you want an
attorney?
Bhiski: I did. I called
m y f r i e n d
w ho called
for lawyer for
me.
IJ: So you want to wait
to see if your friend
gets you a lawyer?
Bhiski: Not a problem, sir.
Y o u c a n – n o
problem. You can
like–
IJ: Do you want to
proceed today?
Bhiski: Yeah.
IJ: Okay. You will
proceed today with
no lawyer, right?
Bhiski: [no audible
4 Bhiski raises three due process
claims in this petition for review: that the
IJ erred in (1) failing to ensure he was
financially capable of leaving for
Tunisia; (2) failing to explain the
consequences of voluntarily departing;
and (3) proceeding with the hearing
despite the absence of counsel. The first
due process argument is not discernible
in the Notice of Appeal to the BIA.
Because it cannot be said to have been
presented to the BIA, we are without
jurisdiction to hear it and will not discuss
it in this opinion.

-- 7 of 11 --

8
response]
A.R. at 93-94. In his petition for review,
Bhiski relies on his final “no audible
response” to argue that his waiver was
equivocal. This is too flimsy a foundation
on which to base a claim of violation of
due process inasmuch as the IJ asked
Bhiski three times if he wanted to proceed
without counsel and Bhiski responded
three times in the affirmative immediately
before the final non-response.
Assuming arguendo that this does
not constitute a waiver, a review of the
Administrative Record reveals no due
process violatio n resulting from
proceeding without counsel or failing to
explain to Bhiski the consequences of
overstaying the departure date. With
regard to the absence of counsel, we have
previously examined the failure to enter a
continuance absent counsel under an abuse
of discretion standard. Ponce-Leiva, 331
F.3d at 375 (finding that there was no
abuse of discretion in denying a
continuance given the failure of the alien
to obtain counsel). There was no such
abuse of discretion here.
The IJ asked Bhiski whether he had
any relatives in the United States,
presumably to uncover the potential for an
immediate relative petition, and Bhiski
responded that he did not. The IJ also
asked whether Bhiski feared returning to
Tunisia, presumably to investigate possible
asylum claims, and again Bhiski responded
that he had no such fears but that he would
be leaving behind his girlfriend. The
absence of either relatives or a fear of
return left Bhiski ineligible for anything
other than voluntary departure, as the IJ
noted.
Bhiski argues it “is reasonable to
assume that an IJ, who is experienced in
these types of cases, would recognize that
[Bhiski] had an opportunity to adjust his
status through his relationship with [his
girlfriend] Ms. Maturo, a [United States
Citizen].” Pet. Br. at 24. He further
claims that his common law marriage to
Maturo would have been sufficient to
enable him to apply for an adjustment of
status. There are several reasons why this
is unconvincing. First, the Government
represented during oral argument that a
common law marriage, without a
ceremonial marriage, would not make
Bhiski eligible for a spouse visa petition,
and Bhiski provided no precedent
supporting his contention that a common
law marriage is a sufficient basis for such
petition. Second, when the IJ asked Bhiski
if he was married, he responded “No, I’m
single.” A.R. at 98. Bhiski also referred
to Maturo throughout the proceedings as
his girlfriend, and did not object to the IJ’s
doing so as well. This does not comport
with Maturo’s assertion that “[She and
Bhiski] are always together just like a
married couple. I had told all my friends
we had gotten married so that nobody can
say we didn’t call our self Husband and
Wife.” A.R. at 42. Finally, the hearing
was held on May 16, 2002, but according
to Maturo’s own letter, she did not agree to
marry Bhiski until April, 2002, which was
roughly a year after he first asked her and
only a month before the hearing. A.R. at

-- 8 of 11 --

9
42. Given Bhiski’s “I’m single” response
and the letter submitted by Maturo, there is
no reason to think counsel could have
successfully used the alleged common law
marriage, to the extent there was one, to
avoid voluntary departure.
The Administrative Record clearly
contradicts Bhiski’s claim that the IJ did
not alert him to the consequences of failing
to honor the voluntary departure date. The
IJ first explained the difficulty of changing
his departure status based upon a
subsequent marriage to Maturo by stating,
“[I]f you got married right now, the INS
will presume you did it for fraudulent
purposes just to get your green card to try
to avoid deportation. Now, you can show
that that’s not true, but it’s not . . . an easy
thing to do.” A.R. at 101. Second, the IJ
explained in detail how Bhiski could go
about seeking an extension of his
voluntary departure date and having
Maturo petition for his immigration in the
event he did get married, but cautioned
that “it takes a while, and you would have
to leave in the meantime, return to Tunisia
and wait there patiently, and then if it’s
granted, you would be issued an immigrant
visa.” A.R at 102. Finally, the IJ made
clear that if Bhiski overstayed his
departure date, he would lose the bond
posted in the amount of $6,500, and he
would “probably be barred from coming
back to this country for a number of
years.” A.R. at 103. We fail to see how
counsel could have explained the
consequences more clearly than the IJ.
This was not a proceeding in which
the IJ addressed the alien’s concerns in a
cursory or impatient manner; indeed, the
IJ’s explanation of Bhiski’s options was
c o m m e n d a b l y c o m p r e h e n s i v e .
Accordingly, although we conclude that
we have jurisdiction to hear Bhiski’s due
process claims, despite the absence of a
brief in support of his appeal before the
BIA, we agree with the BIA’s conclusion
that Bhiski “did not provide evidence on
his notice of appeal of how his hearing
w a s prejud ic ed b y th e a l le g ed
deficiencies,” A.R. at 2, because a review
of the Administrative Record reveals no
such evidence. Furthermore, the record
contains Bhiski’s express waiver of his
right to counsel. We will deny the petition
for review on these grounds.
B. Motion to Remand under Matter of
Velarde-Pacheco
On January 28, 2003, during the
pendency of his due process appeal to the
BIA, Bhiski filed a Motion to Remand and
Stay of Removal,5 based on the
outstanding visa petition he and his wife
filed on June 13, 2002. Matter of Velarde-
Pacheco affords aliens “the opportunity to
apply for adjustment of status when their
application is based upon an unadjudicated
5 While Bhiski presented the
motion as a motion to remand, the BIA,
Bhiski, and the INS have treated the
motion as a motion to reopen the
proceedings under Matter of Velarde-
Pacheco, 23 I. & N. Dec. 253 (BIA
2002). We will do the same, although
we will refer to Bhiski’s motion as the
“Motion to Remand.”

-- 9 of 11 --

10
visa petition.” A.R. at 2. A motion to
reopen for adjustment of status based on a
marriage entere d into a fte r the
commencement of proceedings may be
granted
where the following factors
are present: (1) the motion is
timely filed; (2) the motion
is not numerically barred by
the regulations; (3) the
motion is not barred by
Matter of Shaar, 21 I. & N.
Dec. 541 (BIA 1996), or on
a n y o ther p r o c e d u r a l
grounds; (4) the motion
p r e s e n t s c l e a r a n d
c o n v i n c i n g e v i d e n c e
i n d i c a t i n g a s t r o n g
likelihood that the [alien’s]
marriage is bona fide; and
(5) the Service either does
not oppose the motion or
bases its opposition solely
on Matter of Arthur . . . .
Matter of Velarde-Pacheco, 23 I. & N.
Dec. at 256 (emphasis added). In Matter
of Arthur, 20 I. & N. Dec. 475 (BIA
1992), the BIA held that a motion to
reopen could not be granted on the ground
of a pending unadjudicated relative
petition based on subsequent marriage.
The INS opposed the M otion to
Remand on the ground that Bhiski was
ineligible for adjustment of status both
because of his failure to depart and his
failure to submit clear and convincing
evidence of a bona fide marriage. Both
reasons amount to a non-Matter of Arthur
opposition; thus the BIA was correct in
noting that “because the Department of
Homeland Security . . . opposes his
motion,” Bhiski is ineligible for relief
under Matter of Velarde-Pacheco. A.R. at
2.
In the instant case, the INS’s
opposition to the motion subsumes prongs
(3) and (4) of the Matter of Velarde-
Pacheco inquiry. Bhiski’s statutory
ineligibility for failing to depart by his
voluntary departure date is specifically a
procedural bar under prong (3) and Matter
of Shaar, 21 I. & N. Dec. 541, 542, 548-49
(BIA 1996) (holding that an alien who
overstays a voluntary departure date after
filing a motion to reopen during the
pendency of the voluntary period is
ineligible for the suspension of deportation
“absent very limited exceptional
circumstances”). His ineligibility based
upon his failure to provide “clear and
convincing evidence” of a bona fide
marriage directly overlaps with prong (4).
Nothing in Matter of Velarde-Pacheco
suggests that the INS’s opposition cannot
overlap with the other factors of its test, so
long as the opposition is not based on
Matter of Arthur. Furthermore, Bhiski
argues that we should have jurisdiction to
investigate the good faith validity of the
INS’s opposition, but again nothing in
Matter of Velarde-Pacheco suggests that
the INS’s opposition has to be in good
faith.6 As long as the INS opposes the
6 A review of the Administrative
Record illustrates the facial legitimacy of
the INS’s objections. Because Bhiski

-- 10 of 11 --

11
motion on non-Matter of Arthur grounds,
the alien does not fall within the exception
carved out by Matter of Velarde-Pacheco.
Accordingly, the BIA did not err in
denying Bhiski’s Motion to Remand.
We will therefore deny the petition
for review as it concerns this motion.
III.
CONCLUSION
For the foregoing reasons, we will
deny the petition for review both as to the
due process appeal and as to the Motion to
Remand.
failed to depart by his voluntary
departure date, he is ineligible for relief
for a period of ten years. A.R. at 14
(citing 8 C.F.R. § 240.26(a)).
Furthermore, a motion to reopen for the
adjustment of status should not be
granted when the alien is subject to a
statutory bar. Matter of Shaar, 21 I. & N.
Dec. at 542-49. With regard to the bona
fide nature of Bhiski’s marriage, we note
that the evidence submitted in support of
the marriage is dated after Bhiski’s May
16, 2002 hearing at which his voluntary
departure order was given. A.R. at 32
(Certificate of Marriage dated June 27,
2002); A.R. at 36 (Joint Residential
Lease dated June 1, 2002); A.R. at 38
(Checks Issued from Joint Account dated
no earlier than November 30, 2002); A.R
at 42 (Letter from Maturo attesting to
Marriage dated January 16, 2003).

-- 11 of 11 --