Iouri v. Ashcroft

• Decision Date: 11 September 2006
• Docket Number: Docket No. 02-4998(CON).,Docket No. 03-40134(CON).,Docket No. 03-40132(CON).,Docket No. 02-4992(L).
• Citation: 487 F.3d 76
• Parties: Vladimir IOURI and Vera Yuriy, Petitioners, v. John ASHCROFT, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

487 F.3d 76

Vladimir IOURI and Vera Yuriy, Petitioners, v. John ASHCROFT, Attorney General of the United States, Respondent.

Docket No. 02-4992(L).

Docket No. 02-4998(CON).

Docket No. 03-40132(CON).

Docket No. 03-40134(CON).

United States Court of Appeals, Second Circuit.

Argued: March 22, 2005.

Decided: September 11, 2006.

Amended: September 13, 2006.

On Petition for Rehearing: Decided May 24, 2007.

Amended: May 24, 2007.

Irina Kogan, Brooklyn, NY, Dan M. Kahan, Yale Law School Supreme Court Advocacy Clinic, New Haven, CT; Charles A. Rothfeld and Andrew Pincus, Mayer, Brown, Rowe & Maw LLP, Washington, DC, for Petitioners.

John C. Cunningham, Senior Litigation Counsel (Peter D. Keisler, Assistant Attorney General, Linda S. Wendtland, Assistant Director, on the brief), Office of Immigration Litigation, Washington, DC, for Respondent.

Before: SOTOMAYOR, RAGGI, and HALL, Circuit Judges.

On consideration of the petition for rehearing, the opinion issued on September 11, 2006, is modified in order to clarify that, following the repeal of IIRIRA's transitional rules, our court no longer lacks jurisdiction to review petitions for stays of deportation. For ease of reference, a fully revised opinion shall issue this date.

1. We delete the following sentences of the opinion found at 464 F.3d at 178-79:

Petitioners here, however, are subject to the transitional rule of IIRIRA because deportation proceedings against them commenced prior to April 1, 1997, and a final deportation order was entered after October 30, 1996. Pub.L. No. 104-208, § 309(c)(4), 110 Stat. 3009, 3009-546, 3009-625. Two changes made applicable by the transitional rules are relevant here.

In place of those deleted sentences, we insert the following:

Petitioners here, however, are subject to the rule of IIRIRA, as amended by the REAL ID Act of 2005, because a final deportation order was entered after October 30, 1996. Pub.L. No. 104-208, § 309(c)(4), 110 Stat. 3009, 3009-546, 3009-625; REAL ID Act of 2005, Pub.L. 109-13, § 106(d), 119 Stat. 231, 311. Two changes made applicable by IIRIRA are relevant here.

2. In the opinion at 464 F.3d at 179, we delete the phrase "—a permanent rules case—."

3. We delete the following sentences of the opinion found at Iouri v. Ashcroft, 464 F.3d 172, 180 (2d Cir.2006):

Such stays are particularly important in cases governed by IIRIRA's transitional rules because removal of an alien strips this Court of jurisdiction to hear their petition for review. See Elian, 370 F.3d at 900. Thus, if we deny a stay of deportation, we deprive ourselves of the opportunity to review a claim, and as a result, we may end up returning an alien to the very persecution he or she was fleeing in the first place.

4. We modify footnote 8, 464 F.3d at 180, to read as follows:

Under IIRIRA's transitional rules, the relief sought by stays of deportation was particularly significant because removal of an alien under those rules stripped this Court of jurisdiction to hear their petition for review. See Elian, 370 F.3d at 900. During the course of this appeal, Congress repealed the IIRIRA transitional rules, reestablishing our jurisdiction to hear the appeals of aliens in spite of their departure. See Obale v. Att'y Gen., 453 F.3d 151, 160 n. 9 (3d Cir.2006) ("Congress enacted 8 U.S.C. § 1252(b)(3)(B) in order to permit judicial review of a removal order even if the alien has departed the United States."). This enactment did not, however, render a stay of deportation and a stay of voluntary departure functionally the same. Notwithstanding the repeal of the IIRIRA transitional rules, these two forms of relief continue to differ in both their practical and equitable respects. Consequently, the Government deserves prompt notice of precisely what relief a petitioner seeks. Indeed, providing such notice is a petitioner's responsibility. Under Federal Rule of Appellate Procedure 18, which governs stays pending review of an agency decision, a motion for a stay must include "the reasons for granting the relief requested and the facts relied on." Fed. R.App. P. 18(a)(2)(B)(i). In this case, Petitioners styled their motion as a "stay of deportation" and, in support, noted that because stays are no longer automatically issued they are "subject to being physically deported from the United States at any time" and that a "denial of a Stay of Deportation will allow the INS to act to deport them and render [the] Petition for Review moot." It is clear, then, that the reasons offered by Petitioners for granting their stay were aimed at halting their deportation rather than extending their period for voluntary departure. Petitioners thus failed to give appropriate notice that they sought relief in the form of a stay of voluntary departure. As a result, they are now not entitled to that relief. See Thapa, 460 F.3d at 336-37 (stating that the equities relevant to a stay of a voluntary departure order and a stay of an order of removal may balance differently and concluding that granting Thapa's motion for a stay of the voluntary departure order did not necessitate granting his motion for a stay of the order of removal).

5. We delete the following sentence of the opinion found at 464 F.3d at 181: "Whereas a stay of deportation is aimed at preserving the court's jurisdiction, a stay of the voluntary departure period is a way for the alien to extend the benefits of the privilege of voluntary departure beyond the date the alien was initially afforded." In its place, we insert: "Whereas a stay of deportation is aimed at preventing forcible removal, a stay of the voluntary departure period is a way for the alien to extend the benefits of the privilege of voluntary departure beyond the date the alien was initially afforded."

6. Finally, we delete footnote 9, found at 464 F.3d at 181.

The petition for rehearing is DENIED.

HALL, Circuit Judge.

Vladimir Iouri and Vera Yuriy ("Petitioners"), natives of the former Soviet Union and citizens of the now independent Ukraine, petition for review from a November 27, 2002 decision of the Board of Immigration Appeals ("BIA") summarily affirming an Immigration Judge's ("IJ") order finding Petitioners incredible and denying their application for asylum, withholding of return, and relief under the Convention Against Torture ("CAT"). Petitioners also seek review of a May 29, 2003 order of the BIA denying their motion to reopen immigration proceedings. The purpose of the motion to reopen was to adjust their status to that of lawful permanent residents on the basis of approved "immediate relative" petitions filed on Petitioners' behalf by their daughter, a United States citizen. The BIA denied the motion because by the time it was filed, Petitioners had remained in the United States beyond the period granted for voluntary departure and were, therefore, statutorily barred from seeking adjustment of status.

On petition for review, Petitioners raise two issues. First, whether the BIA erred by failing to take into account their advanced age in assessing their credibility. Second, whether their voluntary departure period should be deemed stayed, tolled, or otherwise extended by their having timely filed for a petition for review and moved for a stay of deportation in their underlying asylum case.

I. Background

Petitioners—husband and wife—are natives of the former Soviet Union and citizens of the now independent Ukraine. Iouri entered the United States on or about April 4, 1993 as a non-immigrant visitor. Yuriy followed on or about August 3, 1993, also as a non-immigrant visitor. Soon after his wife's arrival, Iouri sought asylum claiming that as a member of the Ukraine Orthodox Church, he was persecuted and has a well-founded fear of future persecution due to his religious beliefs and affiliation.¹

In his asylum application, Iouri claims that he has long been mistreated due to his religious beliefs. In particular, he asserts that under Communist rule, his family was unable to practice their religion openly, and as a child, he was punished in school for attending Easter services. His application also recounts alleged mistreatment while he served in the army. In Hungary, for example, Iouri asserts he refused to shoot protestors due to his moral and religious convictions, and as a result, he was mistreated and threatened with punishment. Iouri claims his commanding officer arrested him while he was praying.² Beyond that, Iouri contends he was generally mocked, threatened, and forced to serve in an "atmosphere of general hostility."

According to Petitioners, conditions did not improve with perestroika and independence. They report receiving threatening letters and phone calls; letters they sent were opened and inspected; and the Russian Orthodox and Ukranian Catholic churches, backed by the government, did "their best to declare [Petitioner's] religion out-of-law."

Iouri's asylum application, however, made no mention of any specific incidents of abuse or violence against him or his wife. Indeed, Iouri mentioned specific incidents for the first time during an asylum interview and in an addendum to his application submitted to the IJ in June 1999. In the addendum, Iouri claimed that (1) he was attacked in December of 1991 and threatened with death if he did not stop attending religious services; (2) his apartment was vandalized in March of 1992; and (3) in February of 1993, his apartment was again broken into and vandalized, and he was beaten and admitted to the hospital with a ruptured kidney.

A hearing was held on July 6, 2000 at which both Petitioners testified. With regard to the 1991 incident, Iouri claimed for the first time that he was knocked unconscious, suffered injuries to his head and chest, and was hospitalized for seven days. As to the 1992 vandalism incident, he testified that graffiti with death threats was painted on the wall, and when he attempted to report the incident, police informed him the case was...