Ilze Kruze v. Loretta E. Lynch

615 F. App'x 857
CourtCourt of Appeals for the Sixth Circuit
DecidedSeptember 24, 2015
Docket14-4270
StatusUnpublished
Cited by2 cases

This text of 615 F. App'x 857 (Ilze Kruze v. Loretta E. Lynch) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ilze Kruze v. Loretta E. Lynch, 615 F. App'x 857 (6th Cir. 2015).

Opinion

OPINION

KAREN NELSON MOORE, Circuit Judge.

Ilze Kruze, a native and citizen of Latvia, petitions this court for review of an order of the Board of Immigration Appeals (“BIA”) denying her application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). Kruze argues that the BIA’s finding that her asylum application was frivolous is erroneous, that translation errors denied her due process, and that the BIA erred in denying withholding of removal and protection under CAT. For the reasons stated below, we DENY Kruze’s petition for review.

I. BACKGROUND

Kruze entered the United States as a non-immigrant visitor on February 1, 1998 and remained beyond the expiration of her status. Administrative Record (“A.R.”) at 828 (Form 1-589 at 1). On June 5, 2000, Kruze married Sergey Zhummaev in Indianapolis, Indiana. Id. at 847 (Marriage Certificate). Zhummaev is a citizen of Russia and is of mixed Russian and Uzbek heritage. Id. at 829 (Form 1-589 at 2); id. at 948 (Birth Certificate). Kruze and Zhummaev have one child, born in the United States in 2002. Id. at 829 (Form 1-589 at 2).

In 2006, the Department of Homeland Security (“DHS”) began removal proceedings against both Kruze and Zhummaev. Id. at 905 (Kruze Notice to Appear); id. at 1017 (Zhummaev Notice to Appeal'). Kruze conceded removability. Id. at 198 (Jan. 9, 2007 H’rg Tr. at 6). On April 3, 2007, she submitted a Form 1-589 Application for Asylum and for Withholding of Removal. Id. at 828 (Form 1-589). She included Zhummaev on her application. Id. at 829 (Form 1-589 at 2).

Kruze stated in her written application that she “was persecuted and discriminated against because of [her] family’s Russian heritage and [her] membership in the Russian Orthodox Church.” Id. at 832 (Form 1-589 at 5). She claimed that prior to leaving Latvia “someone shot a bullet through [her] window and twice [her] apartment was broken into” but the police “refused to help.” Id. Kruze feared harm if she were to return to Latvia. Id. She explained that she was an “outcast” in her *859 family and her daughter would “have a hard time in school.” Id. Further, Kruze claimed that because of her “religion, ethnic heritage, and membership in a particular social group (age)” she would be “unable to find employment.” Id. at 832; 837 (Form 1-589 at 5 & Addendum). She also feared torture by the Latvian , government and believed that her family would be “targets for extortion and other criminal enterprises.”- Id. at 833 (Form 1-589 at 6).

Kruze’s application was filed over nine years after her arrival in the United States, and thus was beyond the one-year deadline to apply for asylum. See 8 U.S.C. § 1158(a)(2)(B). In her application, Kruze indicated that she did not file within one year of her arrival because she “did not know the language and [her] brother, Rai-tis, controlled everything.” A.R. • at 835 (Form 1-589 at 8). Kruze explained that Raitis took her documents and money and that he attacked her. Id. At the April 3, 2007 hearing in which Kruze submitted her application, the IJ indicated that he did not believe her application “on its face” alleged “a viable excuse to miss the one-year deadline.” Id. at 202 (Apr. 3, 2Ó07 H’rg Tr. at 13). The IJ explained that he would “treat [the application] as a withholding application only and pretermit the asylum application,” but that Kruze could “attempt to demonstrate” why the asylum application was timely at her merits hearing. Id. The IJ also asked Kruze whether she would need a Latvian translator for her merits hearing. Id. at 203 (Apr. 3, 2007 H’rg Tr. at 14). Kruze responded that “Russian be good also,” and that there was “[n]o difference” as to which she preferred. Id. Because Zhummaev, who would also be a witness at the hearing, needed a Russian translator, the IJ requested a Russian translator for the merits hearing. Id. at 203-04 (Apr. 3, 2007 H’rg Tr. at 14-15).

Zhummaev appeared before the IJ on July 17, 2007. Id. at 206 (July 17, 2007 H’rg Tr. at 16). Through counsel, Zhum-maev conceded removability but stated that he was a derivative on Kruze’s application for asylum. Id. at 206, 208-09 (July 17, 2007 H’rg Tr. at 16, 18-19). The IJ consolidated the two cases, with Kruze as the lead applicant. Id. at 212 (July 17, 2007 H’rg Tr. at 22).

The consolidated merits hearing was held on September 29, 2008. Id. at 214 (Sept. 29, 2008 H’rg Tr. at 23). Addressing Kruze, the IJ stated: “Okay, ma’am, you filed an asylum application.” Id. at 217 (Sept. 29, 2007 H’rg Tr. at 26). Kruze answered, “Yes.” Id. The IJ then explained that “[i]t was many years too late,” but that “because you want to try to apply for asylum, I am required to give you a warning.” Id. The IJ warned Kruze about the meaning and consequences of a frivolous application. Id. at 217-18 (Sept. 29, 2008 H’rg Tr. at 26 — 27). The IJ then asked Kruze whether she had “been over [her] application line-by-line and word-for-word with a competent translator.” Id. at 218 (Sept. 29, 2008 H’rg Tr. at 27). Kruze responded that she had. Id. Kruze was then given the opportunity to make changes to her application. She corrected the date of her second entry to the United States, the date of her marriage, and the spelling of her child’s name. Id. at 218-22 (Sept. 29,2008 H’rg Tr. at 27-31).

Kruze then testified that it would “be a disaster” if she returned to Latvia with her family because her husband is Russian and their child speaks only English. Id. at 236-37 (Sept. 29, 2008 H’rg Tr. at 45-46). When asked whether anything had happened to her prior to leaving Latvia, Kruze answered that “[t]here was some small incident, but that is' nothing to do with nationality.” Id. at 239 (Sept. 29, 2008 H’rg Tr. at 48). Kruze was also asked *860 whether she attributes any of the harm that she suffered to her membership in the Russian Orthodox Church. Id. at 240 (Sept. 29, 2008 H’rg Tr. at 49). Kruze answered: “Possibly.” Id. She' later explained that, when she was in school, she was once punished for attending a Russian Easter Service. Id. at 242 (Sept. 29, 2008 H’rg Tr. at 51).

Kruze clarified that when she indicated in her written application that she was persecuted because of her heritage and religion, she “meant that it[] could happen” if she were to go back with her Russian husband and child. Id. at 241 (Sept. 29, 2008 H’rg Tr. at 50). She further explained that her Latvian family was very nationalistic and that they did not accept her marriage to a Russian. Id. at 248-46 (Sept. 29, 2008 H’rg Tr. at 52-55).

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