Romanenko v. Ashcroft

Ninth Circuit

Romanenko v. Ashcroft

97 F. App'x 147

CourtCourt of Appeals for the Ninth Circuit

DecidedMay 13, 2004

DocketNo. 03-70167

StatusPublished

This text of 97 F. App'x 147 (Romanenko v. Ashcroft) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Romanenko v. Ashcroft, 97 F. App'x 147 (9th Cir. 2004).

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Opinion

MEMORANDUM **

Dmitry Romanenko petitions for review of the Board of Immigration Appeals’ sum[148]*148mary affirmance of an immigration judge’s decision denying his application for asylum and withholding of removal. We have jurisdiction pursuant to 8 U.S.C. § 1252, and we deny the petition. As the parties are familiar with the facts, we do not recount them here except as necessary.

Romanenko first argues that the BIA and the IJ erred in fading to consider his eligibility for Convention Against Torture relief. We disagree. Romanenko, who was represented by counsel before the BIA, failed to raise a CAT claim before that tribunal and hence failed to exhaust his remedies. See Vargas v. U.S. Dept. I.N.S., 831 F.2d 906, 907-08 (9th Cir.1987). Moreover, Romanenko could have sought to reopen his case before the IJ to assert his CAT claim, see 8 C.F.R. § 208.18(b)(2), but did not do so.

Romanenko next argues that the BIA erred in adopting the IJ’s decision without opinion. This argument is foreclosed by Falcon Carriche v. Ashcroft, 350 F.3d 845 (9th Cir.2003). Moreover, there is no harm to Romanenko in the BIA’s affirmance without opinion because, where the BIA does this, we review the IJ’s decision as the final agency action. Id. at 848.

Finally, pursuant to Desta v. Ashcroft, 365 F.3d 741 (9th Cir.2004), petitioner’s motion for stay of removal included a timely request for stay of voluntary departure. Because the temporary stay of removal was continued based on the government’s filing of a notice of non-opposition, the voluntary departure period was also stayed, nunc pro tunc, to the filing of the motion for stay of removal and this stay will expire upon issuance of the mandate. Romanenko will have three days after the issuance of the mandate to depart voluntarily.

PETITION DENIED.

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MEMORANDUM **

Dmitry Romanenko petitions for review of the Board of Immigration Appeals’ sum[148]*148mary affirmance of an immigration judge’s decision denying his application for asylum and withholding of removal. We have jurisdiction pursuant to 8 U.S.C. § 1252, and we deny the petition. As the parties are familiar with the facts, we do not recount them here except as necessary.

Romanenko first argues that the BIA and the IJ erred in fading to consider his eligibility for Convention Against Torture relief. We disagree. Romanenko, who was represented by counsel before the BIA, failed to raise a CAT claim before that tribunal and hence failed to exhaust his remedies. See Vargas v. U.S. Dept. I.N.S., 831 F.2d 906, 907-08 (9th Cir.1987). Moreover, Romanenko could have sought to reopen his case before the IJ to assert his CAT claim, see 8 C.F.R. § 208.18(b)(2), but did not do so.

Romanenko next argues that the BIA erred in adopting the IJ’s decision without opinion. This argument is foreclosed by Falcon Carriche v. Ashcroft, 350 F.3d 845 (9th Cir.2003). Moreover, there is no harm to Romanenko in the BIA’s affirmance without opinion because, where the BIA does this, we review the IJ’s decision as the final agency action. Id. at 848.

Finally, pursuant to Desta v. Ashcroft, 365 F.3d 741 (9th Cir.2004), petitioner’s motion for stay of removal included a timely request for stay of voluntary departure. Because the temporary stay of removal was continued based on the government’s filing of a notice of non-opposition, the voluntary departure period was also stayed, nunc pro tunc, to the filing of the motion for stay of removal and this stay will expire upon issuance of the mandate. Romanenko will have three days after the issuance of the mandate to depart voluntarily.

PETITION DENIED.

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Bluebook (online)

97 F. App'x 147, Counsel Stack Legal Research, https://law.counselstack.com/opinion/romanenko-v-ashcroft-ca9-2004.

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