Roman Moldavchuk v. Attorney General United States

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________ No. 17-1175 ______________ ROMAN MOLDAVCHUK, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, Respondent ______________ Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A096-109-377) Immigration Judge: Honorable Charles M. Honeyman ______________ Submitted Under Third Circuit L.A.R. 34.1(a) October 2, 2017 ______________ Before: SHWARTZ and ROTH, Circuit Judges, and PAPPERT,* District Judge. (Opinion Filed: December 4, 2017) ______________ OPINION** ______________ * Honorable Gerald J. Pappert, United States District Judge for the Eastern District of Pennsylvania, sitting by designation. ** This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. SHWARTZ, Circuit Judge. Roman Moldavchuk petitions for review of a decision of the Board of Immigration Appeals (“BIA”) denying his motion to reopen. Because the BIA correctly concluded that Moldavchuk’s motion was untimely and not subject to equitable tolling and because we lack jurisdiction to review his argument that the BIA should have sua sponte reopened his removal proceedings, we will deny the petition in part and dismiss it in part. I Moldavchuk is a native and citizen of Ukraine. In November 1997, he was admitted to the United States as a visitor for a period not to exceed six months but stayed beyond the six-month period without authorization. In July 2004, Moldavchuk was served with a notice to appear, charging him with removability under 8 U.S.C. § 1227(a)(1)(B) as an alien who remained in the United States longer than permitted. In October 2004, Moldavchuk appeared before an Immigration Judge (“IJ”) with counsel Andre Michniak and conceded the charges in the notice to appear. He indicated that he would be seeking to adjust his status to become a permanent resident and that he had filed a labor certification sponsored by a U.S.-based roofing company, which stated that it would hire Moldavchuk because of his skill as a copper sheet metal mechanic and that there were insufficient U.S. workers to fulfill its needs. Between October 2004 and February 2008, the proceedings before the IJ were continued several times to allow both this and a second labor certification sponsored by a different roofing company to be processed. In February 2008, Moldavchuk appeared before the IJ, by which point his 2 second labor certification had been approved,1 and he stated that he would be filing a Form I-140 employment-based visa petition based on the labor certification. Between February 2008 and September 2009, the IJ provided Moldavchuk additional continuances to file the visa petitions, which were subsequently denied. In September 2009, Moldavchuk appeared before the IJ and sought his seventh continuance of the proceedings to allow him to again attempt to adjust his status. This time he sought adjustment based upon his relationship with Hanna Oros, a lawful permanent resident and a naturalization applicant with whom he had a two-year-old U.S. citizen child. Moldavchuk stated that they intended to marry but had not set a date ...

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