Galko v. Ashcroft

114 F. App'x 206
CourtCourt of Appeals for the Seventh Circuit
DecidedAugust 31, 2004
DocketNo. 03-2898
StatusPublished

This text of 114 F. App'x 206 (Galko v. Ashcroft) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Galko v. Ashcroft, 114 F. App'x 206 (7th Cir. 2004).

Opinion

ORDER

Ukranian-native Svitlana Gaiko, who is Jewish, applied for asylum, alleging that she faced persecution based on religion, nationality, and social group after she formed a Jewish organization, “Sledopyt,” to research the Ukrainian army’s killing of its Jewish community in the late 1930s. [207]*207The immigration judge denied her petition for asylum, and the Board of Immigration Appeals affirmed, adopting the IJ’s adverse credibility determination and identifying three inconsistencies in Gaiko’s testimony. Gaiko did not petition us for review of the BIA’s decision, but instead filed a motion for reconsideration, which the BIA denied. Our review is thus limited to the BIA’s denial of the motion to reconsider, and we grant the petition.

In the early 1990s Gaiko formed Sledopyt with three other people to examine the Ukranian army’s killing of many members of its Jewish community in 1937-38, before the Germans occupied the country. She believed that the Ukranian army murdered most of the Jewish community in her hometown of Rabaruska and buried the victims in mass graves in a nearby forest. Through Sledopyt, Gaiko sought to locate those mass graves and create a memorial to the victims in hopes of galvanizing the Jewish community that still lived in the town.

The military arm of Ukranian National Assembly party — the Ukranian National Self-Defense Organization — known for its anti-Semitic beliefs, tried to stop Sledopyt’s activities. Upon learning about Sledopyt’s activities, members of UNSO in April 1995 telephoned Gaiko and her group, threatening to kill them if they did not stop their research. In June two men in UNSO uniforms attacked Gaiko outside her house, injuring her eye, ribs, and left side of her body. Another attack occurred in September, when four UNSO men brutally beat Gaiko and the group while they were working in the forest; Gaiko was hospitalized with a concussion and bruised kidney. Gaiko complained about these attacks to the police and government officials without result.

Despite efforts to work clandestinely in the forest so as not to draw further attention from the UNSO, the group was detained overnight by an unidentified Ukranian military squad, whose relationship to the UNSO is not apparent from the record. According to Gaiko, although the squad detained the group on the pretense that they were “spies,” the squad’s true goal was to stop Sledopyt’s research. During this detention, an officer beat Gaiko and threatened her.

That next night UNSO forces entered Gaiko’s home and physically attacked her and her husband. So that the UNSO would leave their family alone, her husband told the men that Gaiko planned to leave the country and that they were getting a divorce. In December 1995, Gaiko fled the Ukraine for the United States on a six-month visa, leaving her daughter with her husband. After overstaying her visa, Gaiko applied for asylum in February 1997.

Gaiko obtained counsel and testified at a hearing before an IJ in July 1999 Her testimony largely tracked her asylum application, with four exceptions. First, Gaiko testified that the local government had granted official recognition to her group, contradicting her written statement that the government rejected Sledopyt’s application. Second, she testified that during the June 1995 attack, the UNSO members hit her once or twice; in her application she wrote that they had kicked her until she was unconscious. Third, she testified that she suffered only an eye injury during the attack; in her application, however, she stated that she suffered a broken rib and bruises to her left side. Finally, Gaiko did not testify at all about the military officer kicking her while she was detained; in her application, however, she described being hit and kicked.

In an oral decision, the IJ denied Gaiko’s application for asylum. As relevant [208]*208here, the IJ concluded that Gaiko was not credible, and her claims lacked corroborating documentary evidence. The BIA denied her pro se appeal.

After again securing counsel, Gaiko timely filed a motion for reconsideration.1 As relevant here, Gaiko challenged the BIA’s decision essentially on two grounds: credibility and corroboration. Regarding credibility, Gaiko seemed to argue that the BIA erred by construing the IJ’s adverse credibility determination as based on inconsistencies in her testimony. Gaiko contended that the BIA then improperly made its own factual findings that her testimony contained inconsistencies, and, she argues, those inconsistencies were not in fact inconsistent. As for corroborating evidence, Gaiko argued that the BIA erred by not overturning the IJ’s finding that Gaiko should have submitted corroborating evidence because the evidence was not reasonably available and she provided a credible explanation for why it was not available. The BIA denied the motion for reconsideration, concluding that Gaiko had not demonstrated any error in its earlier decision.

Gaiko timely appeals only the BIA’s denial of her motion for reconsideration, so we review only those issues raised in that motion and not the underlying deportation order. Tittjung v. Reno, 199 F.3d 393, 396-97 (7th Cir.1999). “A motion to reconsider is a request that the Board reexamine its decision in light of additional legal arguments, a change of law, or perhaps an argument or aspect of the case which was overlooked.” Matter of Cerna, 20 I. & N. Dec. 399, 402 n. 2, 1991 WL 353528 (BIA 1991) (internal quotations and citations omitted). In a motion to reconsider, a petitioner must cite specific errors of fact or law in the BIA’s decision, supported with pertinent authority. 8 C.F.R. § 1003.2(b)(1); Zhao v. United States Dep’t of Justice, 265 F.3d 83, 90 (2d Cir.2001). We review the BIA’s denial of Gaiko’s motion for reconsideration under the highly deferential abuse-of-discretion standard. 8 C.F.R. § 1003.2(a); Dandan v. Ashcroft, 339 F.3d 567, 575 (7th Cir.2003).

As a threshold matter, the government first argues that we have no jurisdiction to review Gaiko’s petition because she fails to challenge “in any meaningful way” the BIA’s denial of her motion for reconsideration. But the BIA adopted the reasoning of its prior decision, so Gaiko’s brief, which again raises her arguments from her motion to reconsideration, meaningfully challenges the BIA’s denial of the motion. See Ma v. Ashcroft, 361 F.3d 553, 558 (9th Cir.2004); Tittjung, 199 F.3d at, 396-97.

The government next contends that Gaiko waived any challenge on appeal because her motion for reconsideration did not challenge the BIA’s finding that her testimony contained three inconsistencies — inconsistencies that are alone sufficient to support the BIA’s adverse credibility determination. See Tittjung, 199 F.3d at 396-97. But the government too narrowly construes Gaiko’s challenge in her motion for reconsideration to the BIA’s credibility determination. In that motion, Gaiko addressed the BIA’s “sua sponte” findings of inconsistencies in her testimony.

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CERNA
20 I. & N. Dec. 399 (Board of Immigration Appeals, 1991)

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Bluebook (online)
114 F. App'x 206, Counsel Stack Legal Research, https://law.counselstack.com/opinion/galko-v-ashcroft-ca7-2004.