01-3141 Krougliak v. INS

Listen to this article

“[I]t appears that the evidence he wished to present was neither new nor previously unavailable. First and foremost, the document that formed the basis of Krugliak’s motion to reopen was in existence at the time of his asylum hearing. Krugliak’s assertion that such evidence ‘was outside the U.S. and impossible . . . to obtain’ is undercut by the fact that he received (and presented) other documents from the Ukraine, through non-traditional means, such as personal couriers. The document does not appear so sensitive that it could not have been obtained (and subsequently transmitted to Krougliak) by other individuals. Furthermore, any argument that Krougliak’s mother refused to release the document to him is not supported by the record. In papers filed with the INS, in which he sought to visit his ailing mother during the pendency of his BIA appeal, Krougliak failed to mention that his mother was in possession of documents that could have been helpful to his asylum application.

“We have, to date, not decided whether, in immigration proceedings, a motion to remand, filed after the entry of a final order should be treated as a motion to reopen. The Board of Immigration Appeals has spoken on the issue in the Matter of L-V-K, Interim Decision 3409, 1999 WL 607159 (BIA 1999). In that case, the Board determined that when a motion to remand is filed after a final order has been issued and proceedings have been closed, ‘[u]nless and until such time as the proceedings are reopened,’ it will treat that motion as one to reopen proceedings… [T]he Board’s logic appears sound, reasonable, and entitled to deference – as procedurally it would be impossible to remand a case that had been closed. Therefore, we hold that when a petitioner files a motion to remand for adjustment of status after his case has been closed, that motion should be treated as one to reopen proceedings. The Board properly disposed of Kroulgiak’s motion to remand as an untimely motion to reopen.”

Affirmed.

On Petition for Review from a Final Order of the Board of Immigration Appeals