Husyev v. Mukasey

528 F.3d 1172, 2008 U.S. App. LEXIS 12688, 2008 WL 2405682
Court of Appeals for the Ninth Circuit·Decided June 16, 2008·No. 05-75177·Published·Cited by 362 cases

Opinion

CANBY, Circuit Judge:

Hennadiy Leonidovich Husyev, a native and ethnic Russian and a citizen of Ukraine, petitions for review of final orders of the Board of Immigration Appeals (“BIA”) denying relief from removal. Hu-syev originally entered the United States on a tourist visa. He overstayed his visa and, 364 days after the expiration of his temporary nonimmigrant status, applied *1175 for asylum. The Immigration Judge (“IJ”) and the BIA denied Husyev’s application as untimely. They held that, although Husyev’s legal status as a tourist could constitute an “extraordinary circumstance” justifying his failure to file an asylum application within one year of arrival, see 8 U.S.C. § 1158(a)(2)(D), he had failed to file his asylum application within a “reasonable period” after expiration of his legal status, see 8 C.F.R. § 1208.4(a)(5)(iv). We conclude, as a matter of first impression in this circuit, that we have jurisdiction under the REAL ID Act, Pub.L. No. 109-13, Div. B (2005), to review this determination. Exercising such review, we affirm the decision of the BIA.

During his removal proceedings, Husyev also sought withholding of removal and relief under the Convention Against Torture, which the IJ and the BIA denied. We also affirm these rulings of the BIA, and accordingly deny Husyev’s petition for review. 1

BACKGROUND AND PROCEDURAL HISTORY

I. Husyev’s Asylum Application

Husyev was born in Russia but moved to Ukraine with his family when he was a child in the 1950s. He later became an accomplished pole vaulter and represented the Soviet Union in the Olympic Games in 1972. He subsequently became a physician specializing in sports medicine and worked at the College of Physical Education of West Ukraine. He is a Ukrainian citizen. His spouse, Tetyana Hryho-rivna Husyeva (Husyeva), is an ethnic Russian, but a native and citizen of Ukraine.

The Husyevs entered the United States on November 20, 1999, on tourist visas that authorized them to remain in the country until May 19, 2000. They remained in the United States after expiration of their visas. Husyev filed an application for asylum on May 18, 2001. In his asylum application, Husyev stated that he was requesting asylum because of “past persecution based on [his] Russian [ethnicity” and his “well founded fear of persecution” if forced to return to Ukraine. Husyev stated that, as ethnic Russians, he and his family “were part of an ethnic minority living among a majority of ethnic Ukrainians” and had been “harassed and mistreated” by members of the UNA-UNSO party, a Ukrainian nationalist group.

Husyev submitted a declaration in which he described in detail several instances in which he and his immediate family suffered verbal and physical abuse at the hand of members of Ukranian nationalist groups. He also stated that both he and his wife lost their jobs on account of their Russian heritage. In his application, Hu-syev did not mention that he participated in any form of political advocacy or public activity that would cause nationalist groups to target him.

Husyev was interviewed by an asylum officer in the presence of his then attorney, Larry James. According to the asylum officer’s notes, Husyev admitted that he did not apply for asylum within one year of his arrival, but asserted that he had not done so because he had been told that only Jews from Ukraine were receiving asylum, not Russians. The officer concluded that “there were extraordinary circumstances *1176 excepting [Husyev] from the one-year filing deadline” because he initially had lawful status, but also found that Husyev did not file his application within “a reasonable period of time” after his lawful status ended.

II. The Removal Proceedings

In removal proceedings before the IJ, Husyev argued a new set of extraordinary circumstances — namely, the fraud and malfeasance of a paralegal the Husyevs had hired — to excuse his noncompliance with the one-year bar. According to his brief, “Mr. Husyev and his family became victims of a shameless swindler” named Boris Kaplan, who took their money and then failed to file their asylum application.

Along with the brief, new counsel retained by the Husyevs prior to the commencement of their removal proceedings, Christopher Kerosky, submitted affidavits from Mends and family asserting that, because of their Russian ethnicity, the Hu-syevs had experienced great difficulties while living in Ukraine and that they will face “persecution, unfairness, prejudice, and discrimination” if forced to return to Ukraine. He also submitted photos and press cuttings regarding his role as an Olympic athlete; a copy of a letter dated September 15, 2003 addressed to Boris Kaplan informing Kaplan that the Husyevs intended to file a complaint against him; a copy of a request for investigation of Boris Kaplan submitted to the State Bar of Illinois; and medical records indicating that Husyev displayed traumatic injuries in January 1999 and March 1994.

At his first merits hearing before the IJ, Husyev testified to the discrimination he experienced at work and the attacks described in his initial application. Husyev then testified for the first time that, when he was in Ukraine, he had made “public appearances and speeches for human rights issues.” He contended that in approximately fifteen speeches, he expressed the view that “all nations, Russians, Ukrainians, Jews and whatever nations there were, had to co-exist in a new country, in Ukraine,” but stopped giving speeches after he was beaten at the end of one of the speeches.

After the hearing was recessed, Husyev submitted a new declaration, in which he detailed his dealings with the paralegal, Boris Kaplan, and described the political speeches he gave in Ukraine. In his declaration, Husyev stated that he “started speaking out against nationalism” after the fall of the Soviet Union and that “[f]rom August 1991 until January 1992, [he] gave about 15 such political speeches.” At the speeches, “members of UNA-UNSO tried to physically block [his] way to the platform” and “tried to muffle [his] voice.” After one of these speeches, he was “beaten by a group of thugs associated with this ultra-nationalist organization.”

When Husyev’s hearing continued, he testified further to his dealings with Kap-lan. On cross-examination, he acknowledged that he did not mention Kaplan in his asylum interview. He denied being asked by the asylum officer why he did not file within the one-year deadline and claimed that his attorney at the time had told him that his application was not late, leading him to believe that the information about Kaplan was irrelevant.

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Husyev v. Mukasey, 528 F.3d 1172, 2008 U.S. App. LEXIS 12688, 2008 WL 2405682 (9th Cir. 2008).

528 F.3d 1172 (Husyev v. Mukasey) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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