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Yakov Grigorievich Drabovskiy, A028 158 230 (BIA Dec. 12, 2013)

Yakov Grigorievich Drabovskiy, A028 158 230 (BIA Dec. 12, 2013)

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In this unpublished decision, the Board of Immigration Appeals (BIA) upheld the denial of the respondent’s motion to reopen but remanded the record because the immigration judge never adjudicated two prior motions to reopen, one of which alleged changed county conditions in Russia. The Board stated that in light of the passage of time, the respondent should be permitted to update the record with material evidence not available at his last removal hearing in 2007, and to present an asylum application. The decision was written by Member Edward Grant.
In this unpublished decision, the Board of Immigration Appeals (BIA) upheld the denial of the respondent’s motion to reopen but remanded the record because the immigration judge never adjudicated two prior motions to reopen, one of which alleged changed county conditions in Russia. The Board stated that in light of the passage of time, the respondent should be permitted to update the record with material evidence not available at his last removal hearing in 2007, and to present an asylum application. The decision was written by Member Edward Grant.

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U.S.

Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 Leeburg Pike, Suite 2000
Fall Church. Vrgi11ia 20530
DRABOVSKIY, YAKOV GRIGORIEVICH
07245-032/A028-158-230
FEDERAL DET. CENTER-OAKDALE 2
P.O. Box 1128
FCI ALLENWOOD OAKDALE, LA 71463
P .0. BOX 2000
WHITE DEER, PA 17887
Name: DRABOVSKIY, YAKOV GRIGORI... A 028-158-230
Date of this notice: 12/12/2013
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
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Enclosue
Panel Members:
Grant, Edward R.
Sincerely,
Do Ct
Dona Carr
Chief Clerk
yungc
Userteam: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: Yakov Grigorievich Drabovskiy, A028 158 230 (BIA Dec. 12, 2013)
,.U.S. Department of Justce
Eecutive Ofce fr Imigtion Review
¥
Fal Chuch, Virginia 20530
File: A028 158 230-0adale, LA
Decision of te Board of I gration Apeals
Date:
OEC 12 2013
I re: YAKOV GRIGORIEVICH DRABOVSKIY a.k.a. Jakob Drabovsky
I REMOVAL PROCEEDIGS
APPEAL
ON BEHALF OF RESPONDENT: Pro se
ON BEHALF OF DHS: Rebecca Hollaway
Assistat Chief Counsel
APPLICATION: Repenng; reconsideration
The respondent, a native ad citize of Russia, appeas te decsion of te I  igation
Judge, dated July 18, 2013, denying his motion, which he fled in duplicate on June 21, 2013.1
The respondet's apeal, which is opposed by the Deparent of Homeland Securit ("DHS"),
will be dismissed. However, te record will be reted to te Im gation Judge fr fer
action.
These reoval proceedings concluded when, on Aprl 6, 2007, te Imigation Judge
ordered te respondent's removal fom te United States to Israel on te basis of his Decebe
2003 feeral conviction fr conspiracy to distbute cntolled substaces ad possession ad
distbution of contolled substaces (l.J. at 1-2; Ex. 1).2 See sections 237(a)(2)(A)(iii}, (B)(i)
of te Imigation ad Nationality Act, 8 U.S.C. §§ 1227(a)(2)(A)(iii), (B)(i).
O Octobe 9, 2007, te respondent fled a motion with te Immigation Judge wherein he
requested documets regading the DHS's eforts to remove hm fom tis cunty. On
Januay 28, 2008, the respondet fled a second motion wheren he presented acles conceing
at-Seitsm in Rusia. However, fr reasons which ae uclea, te Imigaton Judge did not
respond to either of tese two motions. On June 21, 2013, te respondent fled a trd motion,
which is the subject of te present appea, with te Imigation Judge.
1 Eve toug te respondent may have resided in this county fr may years, he is deed to
be a aie who is aenable to reoval fom tis count a tere is a absece of evidece tat
he completed the natuaizaon process or oterise acquired United States citzenshp. See
sections 10l{a)(3), (21), (22) of te Act, 8 U.S.C. §§ l 101(a)(3), (21), (22); Okaor v. Gonales,
456 F.3d 531, 534 (5t Cir. 2006).
2 Contay to the resondet's assertons on appeal, the Immigaton Judge did not desigate
Russia as a ateatve cunty of reova. Noneteless, the DHS may have invoked te
provisions of sections 241()(2)(C), (D) of te Act, 8 U.S.C. §§ 1231(b)(2)(C), (D), ad
desigated Russia a alterative cuty of removal ude te provisions of seton 241 ( )(2)(E)
of te Act.
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Cite as: Yakov Grigorievich Drabovskiy, A028 158 230 (BIA Dec. 12, 2013)
A028 158 230
. We aff te Imgation Judge's decision. Te respondent's moton, wheter constued as
a moton t repen or a motion to recnsider, was untimely as it was fled more t 6 yeas afer
te enty of a fnal astatve orde of reoval (I.J. at 2). Setons 240(c)(6)(B), (7)(C)(i) of
te Act, 8 U.S.C. §§ 1229a(c)(6)(B), (7)(C)(i). Moreover, ulike in his second moton, te
respondent dd not rase ay gounds, i.e., chaged county conditions, which could potetially
excuse te utimeliness of his moton. See secton 240(c)(7)(C)(ii) of te Act. We observe that,
as reoval proceedings ae seaate ad apart fom bond proceedigs, claims regading te
respondet's curent detention ae not properly rase in tese reova prceedings. See
8 C.F.R. § 1003.19(d). Additionally, a explaned by te Immigation Judge, whete te DHS
ca reove te respondent fom tis cuty is a sepaate issue which must be addresse to tat
deaent {l.J. at 3). In te absence of a basis to excuse te utmelines of hs moton or a
excetonal circustace which would warat sua sponte repeing or reconsideaton, we wll
not distb te Im gaton Judge's decision. See Matter of J-J-, 21 l&N Dec. 976 (BIA 1997).
We will ret te record to te Immigation Judge to adjudcate te respondent's frst ad
second motions. 3 Iportly, te respondet's second moton, while also utimely, did refer to
''newe reor about at-Setsm in Russia." As such, te Imgation Judge should
detene wheter te repondet ha etalished tat, on te basis of chaged couty
conditons, te uteliness of te respondent's motion should be excuse ad tese proceeings
should be reopened ude te provisions of secton 240(c)(7)(C)(ii) of te Act. Gve the
passage of tme since the respondet fled his moton, the Imigaton Judge should provide te
respondent wit a reasonable oppority to update te record wt evidence tat is materal ad
was not avalale at te time of his ultmate reoval heang on April 6, 2007, ad to preset a
Applicaton fr Asylum ad fr Witholding of Reova (For 1-589). Additonaly, in orde t
reopen proceedings on the basis of chage count conditions in Russia, te respondent must
establish tat Russia is a "county to which reoval has been ordee." Secton 240(c)(7)(C)(ii)
of te Act. As such, befre the provisions fr reopeng under section 240(c)(7)(C)(ii) of te Act
c be invoked on te basis of chaged country conditons in Russia, the respondet must also
present evidenc tat the DHS is seeking to remove him to that count. At te present tme, we
express no opinon regading te underlying merits of te respondent's frst ad second motons.
ORDER: Te respondent's appeal is dismissed.
FURTHER ORDER: Te reord is reted to te Immigation Court fr fhe action as
reuired above. 4
3 On appeal, te respondent argues tat, beteen 07 and 2008, he fled a dozen motions.
However, te preset record contans only 2 motions which wee fled during tat tme peod.
4 The fna adinistatve orde of reoval, entered by te Imigation Judge on April 6, 2007,
reais in efect. Howeve, te respondent is not precluded fom requeting tat the
I igaton Judge stay his remova pendig disposition of his frst ad second motions.
2
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Cite as: Yakov Grigorievich Drabovskiy, A028 158 230 (BIA Dec. 12, 2013)
Ì
'"
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
OAKDALE, LOUISIANA
IN THE MATTER OF
)
)
)
)
)
IN REMOVAL PROCEEDINGS
Yakov Grigorievich DRBOVSKIY File No.: A028-158-230
Respondent
 )
CHARGES: Section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, as an
alien who at ay time aer admission, has been convicted of an
aggravated flony as defned in Section 101(a)(43)(B) of the Act, an
ofense relating to the illicit trafcking in a controlled substance, as
described in section I 02 of the Controlled Substances Act, including a
drug traffcking crime, as defned in section 924( c) of Title 18, United
States Code.
Section 237(a)(2)(B)(i) of the Immigration and Nationality Act, as a alien
who at ay time afer admission, has been convicted of a violation of (or a
conspiracy or attempt to violate) any law or regulation of a State, te
United States, or a freign county relating to a contolled substance (a
defned in Section 102 of the Controlled Substaces Act, 21 U.S.C. 802),
other than a single ofense involving possession fr one's own use of 30
grams or less of marijuana.
MOTION: Motion to Reopen
On Behalf of Respondent
Pro Se
On Behalf of the Government
Assistant Chief Counsel
DRS/ICE/Litigation Unit
1010 East Whatley Road
Oakdale, LA 71463
DECISION OF THE IMIGRATION JUDGE
I. PROCEDURAL AND FACTUAL HISTORY
On February 13, 2007, the U.S. Department of Justice, Imigation and Naturalization
Service ("IS") personally served Respondent with a Notice to Appear ("NTA") alleging that
the Respondent is a native and citizen of Russia who was admitted to the United States at New
York, New York on or about December 27, 1990 a a refgee. The DHS frther alleged that
Respondent's status was adjusted to lawl permanent resident on July 31, 1992. In addition, the
DHS alleged that on December 23, 2003, Respondent was convicted in the Unted States District
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I
Court, Easter District of Kentucky, fr the ofense of conspiracy to distibute schedule III and
IV controlled substances and possession and distbution of schedule III contolled substances, in
violation of title 21 United States Code, section 846, 84l (b)( l )(D), 841(a)(l) and (B)(l )(D) and
the ter of imprisonment imposed was 41 months. Based on these allegations, the DHS charged
the Respondent as removable pursuant to sections 237(a)(2){A)(iii) and 237(a)(2)(B)(i) of the
Immigration and Nationality Act ("Act").
Respondent made no application fr relief and the Court ordered him removed on April
6, 2007. He fled a motion to reopen on June 21, 2013. DHS did not respond.
I. STATEMENT OF THELAW
An Immigration Judge may upon his or her own motion at ay time� or upon motion of
the Department or the alien, reopen or reconsider any case in which he or she has made a
decision, unless jurisdiction is vested with the Board of Immigration Appeals. 8 C.F .R. §
1003 .23(b )(I) (2013).
A motion to reopen "seeks to reopen proceedings so tat new evidence can be presented
and so that a new decision can be entered, normally afer a fther evidentiary hearing." Mater
of Cem� 20 I&N Dec. 399, 403 (BIA 1991). A motion to reopen must state the new fcts that
will be proven at a hearing to be held if the motion is granted ad must be supported by
affdavits and other evidentiary material. 8 C.F.R. § 1003.23(b)(3). Any motion to reopen fr the
purpose of acting on an application fr relief must be accompanied by the appropriate application
fr relief and all supporing documents. Id. A motion to reopen will not be grated unless the
Cour is satisfed that the evidence sought to be ofered is "material and was not available and
could not have been discovered or presented at the frmer heaing." Id. The Court cannot grant a
motion to reopen seeking to apply fr relief if the Immigration Judge flly explained te right to
apply fr such relief and provided an opporunity to apply fr te relief. Id.
Additionally, a motion to reopen is subject to time and numerical limitations. A
respondent can only fle one motion to reopen. 8 C.F.R. § 1003.23(b)(l)(2001). Subject to the
certain exceptions, a part may fe only one motion to reconsider and one motion to reopen
proceedings. Id. A motion to reconsider must be fled within 30 days of the date of entry of a
fnal administrative order of removal, deportation, or exclusion, or on or befre July 31, 1996,
whichever is later. Id. A motion to reopen must be fled within 90 days of the date of entry of a
fnal administative order of removal, deportation, or exclusion, or on or befre September 30,
1996, whichever is later. Id. These liittions shall not apply if the basis of the motion is to
apply fr asylum or wthholding of removal under the Convention Against Torture, and is based
on changed country conditions arising in the county of nationality or the country· to which
removal has been ordered, if such evidence is material and was not available ad could not have
been discovered or presented at the previous proceeding. Id. at § 1003.23(b )( 4)(i).
III. CONCLUSION
The Court must deny the Respondent's motion to reopen because the Respondent's
motion is not timely. The regulations require that a motion to reopen be fled witin 90 days of
the order of removal. Respondent was ordered removed on April 6, 2007 and then fled te
motion approximately six years later.
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The Cou is not in possession of any documents in DHS fles since that is a separate
goverent organization with no afliation with the Cour. Respondent is removable as an
aggravated flon. Whether DHS can remove him fom the United States is a separate issue that
must be addressed to the Department. If Respondent wants to be released, he can request a
continued detention review fom DHS or seek available remedies in fderal cout.
Accordingly, the fllowing order is hereby entered:
ORDER: IT IS HEREBY ORDERED that the
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