Niftaliev v. US Atty. Gen.

504 F.3d 1211, 2007 WL 3002922
CourtCourt of Appeals for the Eleventh Circuit
DecidedOctober 16, 2007
Docket06-12708
StatusPublished
Cited by3 cases

This text of 504 F.3d 1211 (Niftaliev v. US Atty. Gen.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Niftaliev v. US Atty. Gen., 504 F.3d 1211, 2007 WL 3002922 (11th Cir. 2007).

Opinion

504 F.3d 1211 (2007)

Vyacheslav NIFTALIEV, Lyudmila Niftalieva, Dmitro Niftaliev, Petitioners,
v.
U.S. ATTORNEY GENERAL, Respondent.

No. 06-12708.

United States Court of Appeals, Eleventh Circuit.

October 16, 2007.

*1212 David H. Stoller, Stoller & Moreno, PA, Orlando, FL, for Petitioners.

*1213 David C. Kelly, David V. Bernal, OIL, Russell J.E. Verby, U.S. Dept. of Justice, Washington, DC, for Respondent.

Before BIRCH, FAY and CUDAHY,[*] Circuit Judges.

FAY, Circuit Judge:

Upon sua sponte reconsideration of this appeal, we vacate our prior opinion, published at 487 F.3d 834 (11th Cir.2007), and substitute the following opinion in its place.

Vyacheslav Niftaliev[1] ("petitioner"), a citizen of the Ukraine, appeals the Board of Immigration Appeals's ("BIA") decision affirming the Immigration Judge's ("IJ") order denying his petition for withholding of removal under 8 U.S.C. § 1231(b)(3). The IJ denied the petitioner's request for withholding of removal, finding that the petitioner did not suffer past persecution. The Board of Immigration Appeals upheld the IJ's findings in a short affirmance. For the reasons set out below, we reverse.

BACKGROUND

The petitioner testified as follows. He was born in 1965 in Azerbaijan, which at that time was a part of the former Soviet Union. His father was Azerbaijani and his mother was Ukrainian. The petitioner recognized at a young age that there was a noticeable divide between the Azerbaijani and Ukranian people. His Azerbaijani teachers singled him out and humiliated him because he was half Ukranian.

At age 18, the petitioner moved to the Ukraine to complete two years of military service, as was required of young men in the Soviet Union at the time. The majority of the soldiers were Ukrainian. These soldiers routinely harassed the petitioner due to his Azerbaijani blood. The other soldiers would belittle the petitioner, calling him names such as "filthy Azer" and "dirty Caucasian." Some soldiers would also regularly physically assault him. Officers would often assign the petitioner and other minorities the "dirty work," such as cleaning bathrooms and digging ditches.

After completing two years of obligatory military service, the petitioner moved to Estonia, which was also part of the Soviet Union, and started going to school. Professors showed a distaste for people with Azerbaijani blood, as well as other non-Estonian ethnic groups, and would verbally harass him in front of classrooms full of students. The petitioner was eventually kicked out of school for protesting his treatment.

In 1987, after divorcing his first wife, the petitioner moved back to the Ukraine and remarried. In 1991, the couple had their first child in the Ukraine. Because his last name was of Azerbaijani descent, he had trouble finding work and enrolling in school. That same year, the Ukraine became a sovereign nation when it separated from the Soviet Union. After the separation, there was a nationalist trend that further isolated the petitioner and other minorities there. The petitioner testified that his limited knowledge of the Ukrainian language became a liability as Ukranian replaced Russian, the previous official language. Also, to obtain employment, the petitioner had to provide documentation *1214 such as a passport. These documents showed that he was not of pure Ukrainian blood. As a result, the petitioner found it difficult to find and hold down a job.

Since the new Ukranian government continued to treat other ethnic groups as second-class citizens, the petitioner and three of his friends formed a group of minorities (petitioner, another Azerbaijani, a Jew, and a Georgian) that protested the government. This group organized rallies and spoke out against treating minorities differently. For example, the petitioner testified that the government levied more taxes against him simply because he was not a pure Ukrainian. The group also protested against the Ukrainian National Assembly, a nationalist organization that discriminated against non-Ukrainians. The petitioner, and his group of friends, distributed pamphlets advocating equal rights for minorities.

In 1995, the petitioner's group urged a boycott of the upcoming elections because the candidates did not offer any solution to minorities' problems. At a rally against the candidates Ukrainian police beat up and arrested the petitioner. After the petitioner's first arrest, the SBU, a "higher police organization," would randomly interrogate him, search his home, and physically assault him.

The petitioner was arrested at least two more times for similar activities. On the last occasion, he was held for fifteen days without appearing before a court or tribunal. His captors claimed that they were concerned the petitioner was plotting an armed revolution. During these fifteen days, the petitioner was subjected to numerous interrogations, given very little food, and beaten several times. During an interrogation session on the fifteenth day, one of the officers put a pistol to the petitioner's head and threatened to kill him. It was only when the petitioner promised to leave the country that he was released.

Two months passed as the petitioner recuperated in the hospital and obtained the proper visas to leave the country. In early 1996, when the visas were in order, the petitioner, his wife, and his child, fled from the Ukraine to Argentina. Unfortunately, the mistreatment did not stop. While in Argentina, persons appearing to be muggers attacked the petitioner on two separate occasions. The muggers beat up the petitioner but did not steal anything. Not long after the muggings, an anonymous man speaking Russian called the petitioner in Argentina and indirectly referenced the attacks saying that his "friends in the Ukraine were giving regards to [him]." The petitioner agreed to meet this man in a small cafeteria. When they met, the man identified himself as a Ukrainian government official. This man asked the petitioner to provide him information on new chemistry technologies being developed at the chemical plant where the petitioner worked. He further told the petitioner that the SBU still remembered him and to not forget that his mother was still in the Ukraine. The petitioner falsely agreed to obtain the information in order to stall for time. Shortly thereafter, the petitioner moved his family to a different address and obtained the necessary tourist visas to enter the United States. The petitioner and his family entered the United States on February 13, 2001 with a six-month tourist visa. They remained in the United States after the visa expired and gave birth to another child during that time.

COURSE OF PROCEEDINGS

The Immigration and Naturalization Service (now part of the Department of Homeland Security) issued a Notice to Appear *1215 before the IJ on July 17, 2003. At that hearing the petitioner conceded that he, his wife, and his first child were subject to removal under 8 U.S.C. § 1227(a)(1)(B), but asked that he be considered for withholding of removal under 8 U.S.C. § 1231(b)(3).

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Bluebook (online)
504 F.3d 1211, 2007 WL 3002922, Counsel Stack Legal Research, https://law.counselstack.com/opinion/niftaliev-v-us-atty-gen-ca11-2007.