Nazar Bachynskyy v. Eric Holder, Jr
668 F.3d 412
| 7th Cir. | 2011Background
- Bachynskyy, a Ukrainian citizen, entered the U.S. illegally in 2000 and faced removal proceedings.
- He conceded removability after INS summoned him at a weigh station and moved venue from Kansas City to Chicago.
- He initially pursued asylum, withholding of removal, and CAT protection but later withdrew asylum.
- In 2008 the IJ granted voluntary departure with a $500 bond, but the bond was never paid and counsel reportedly did not receive the decision until just before the deadline.
- New regulations (effective Jan 20, 2009) imposed warnings about bond and post-departure duties; they were not retroactive to Bachynskyy’s 2008 grant, and the BIA denied reinstatement and reopening.
- Bachynskyy challenged the retroactivity and any due process issues, leading to this Petition for Review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 2009 voluntary departure advisals apply retroactively | Bachynskyy argues advisals should apply to his pre-2009 grant | Government argues regulations are prospective only | Regulations not retroactive to pre-2009 grants |
| Whether there is a colorable due process claim for lack of advisals | Bachynskyy asserts notice defects harmed due process | No due process defect given any notice received | No colorable due process claim |
| Whether the court has jurisdiction to review the BIA’s denial and related matters | Jurisdiction exists for legal questions despite §1229c(f) bar | INA bar precludes review of discretionary voluntary departure denial | Court retains jurisdiction for legal questions but denies relief on merits; petition denied in part and dismissed in part |
Key Cases Cited
- Dada v. Mukasey, 554 U.S. 1 (U.S. 2008) (must permit withdrawal to preserve motion to reopen for voluntary departure)
- Lopez-Chavez v. Ashcroft, 383 F.3d 650 (7th Cir. 2004) (review of discretionary relief barred)
- Diaz-Ruacho, 24 I. & N. Dec. 47 (BIA 2006) (voluntary departure penalties apply only if bond posted; prior rule)
- Gamero, 25 I. & N. Dec. 164 (BIA 2010) (pre-2009 rule about bond notice; not retroactive)
- Calma v. Holder, 130 S. Ct. 827 (2010) (jurisdictional framework for legal questions; retroactivity analysis cited)
- Torres-Aguilar v. INS, 246 F.3d 1267 (9th Cir. 2001) (colorable due process claim requires possible validity)
- Patel v. Holder, 563 F.3d 565 (7th Cir. 2009) (discussion of legal questions and standards)
- Zamora-Mallari v. Mukasey, 514 F.3d 679 (7th Cir. 2008) (colorable due process standard)