505 F.3d 534 (6th Cir. 2007), 06-4016, Kouljinski v. Keisler

Docket Nº:06-4016.
Citation:505 F.3d 534
Party Name:Nikolai KOULJINSKI, Petitioner, v. Peter D. KEISLER,[*] Acting Attorney General of the United States, Respondent.
Case Date:October 16, 2007
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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505 F.3d 534 (6th Cir. 2007)

Nikolai KOULJINSKI, Petitioner,

v.

Peter D. KEISLER, [*] Acting Attorney General of the United States, Respondent.

No. 06-4016.

United States Court of Appeals, Sixth Circuit.

October 16, 2007

Argued: Sept. 17, 2007.

On Petition for Review of an Order of the Board of Immigration Appeals. No. A72 142 173.

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[Copyrighted Material Omitted]

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ARGUED:

Scott A. Keillor, Ypsilanti, Michigan, for Petitioner. Kristin K. Edison, United States Department of Justice, Washington, D.C., for Respondent.

ON BRIEF:

Scott A. Keillor, Ypsilanti, Michigan, for Petitioner. Kristin K. Edison, United States Department of Justice, Washington, D.C., for Respondent.

Before: MOORE and GRIFFIN, Circuit Judges; GRAHAM, District Judge.[**]

OPINION

KAREN NELSON MOORE, Circuit Judge. After finding that an alien is eligible for asylum, may an immigration judge consider the alien's three convictions for driving under the influence of alcohol in denying the application for asylum as a matter of discretion? That is the principal question in this appeal, and because we conclude that an immigration judge may properly consider such convictions, we DENY Nikolai Kouljinski's petition for review of the decision of the Board of Immigration Appeals denying his application for asylum and withholding of removal.

I. BACKGROUND

A. Procedural History

Petitioner Nikolai Kouljinski ("Kouljinski"), now a fifty-five year-old Russian

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Jew, entered the United States in October 1992 and filed an application for asylum in November 1992 with the former Immigration and Naturalization Service ("INS"). Joint Appendix ("J.A.") at 680-84 (1992 Request for Asylum), 698-708 (2004 Application for Asylum). In June 1995, Kouljinski learned that his wife had been involved in a serious car accident in Russia, and he returned to Russia after first receiving advance parole, which allowed him to reenter the United States and not abandon his application for asylum. J.A. at 611-13 (Authorization for Parole), 141 (Hr'g Tr. at 74). He returned to the United States on August 11, 1995, and his wife and daughter followed him to the United States on December 11, 1995.

On August 14, 2002, the former INS initiated removal proceedings against Kouljinski, alleging that, pursuant to 8 U.S.C. § 1182(a)(7)(A)(i)(I), he was removable for entering the United States without valid documents. J.A. at 709-10 (Notice to Appear in Immigration Court). On November 26, 2003, at an initial Master Calendar hearing, the immigration judge ("IJ"), noting that Kouljinski had originally applied for asylum in 1992, scheduled a second hearing for February 20, 2004, at which time Kouljinski was to submit an updated application for asylum. J.A. at 163-68 (Transcript of Master Calendar Hearing). Kouljinski submitted an updated application for asylum at a brief hearing on February 20, 2004, at which he was represented by his current counsel. J.A. at 698-708 (Application for Asylum), 158-162 (Transcript of Hearing). Kouljinski sought asylum, withholding of removal under the Immigration and Nationality Act ("INA"), and withholding of removal under the Convention Against Torture ("CAT"). On August 13, 2004, an IJ held a hearing at which Kouljinski's attorney, the Department of Homeland Security's attorney, and the IJ discussed the parties' evidentiary submissions in advance of the asylum hearing. J.A. at 149-57 (Transcript of Hearing). On November 12, 2004, the IJ held a hearing on Kouljinski's asylum application. J.A. at 84-148 (Transcript of Hearing). At this hearing, Kouljinski and his wife, Alla Kouljinski ("Ms. Kouljinski"), testified regarding instances of harassment and intimidation that they experienced in Russia and attributed to anti-Semitism.

The IJ rendered an oral decision at the conclusion of the hearing. J.A. at 10-24 (Transcript of Oral Decision). The IJ denied Kouljinski's applications for asylum, withholding of removal under the INA, and withholding of removal under the CAT. The IJ did so after first finding Kouljinski eligible for asylum--he "conclu[ded] that [Kouljinski], in my view, has established a reasonable possibility of persecution," J.A. at 22--but the IJ denied Kouljinski asylum because he "reached the conclusion that a favorable exercise of discretion in this case is unwarranted." J.A. at 24. In doing so, the IJ decided that Kouljinski's eligibility for asylum was not "a sufficiently weighty favorable discretionary factor to outweigh the fact that [he] has three convictions for driving under the influence" of alcohol, noting that Kouljinski's most recent conviction was a felony offense. J.A. at 23.

Kouljinski timely appealed to the BIA, where he argued that the IJ abused his discretion in denying asylum based on Kouljinski's drunk-driving convictions and his lack of family ties to the United States given that his wife and daughter are currently in the United States. Kouljinski also challenged the IJ's findings as to past persecution and as to a likelihood of future persecution and torture, arguing that he had established the higher showing necessary to mandate withholding of removal under the INA and under the CAT.

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On June 23, 2006, the BIA adopted and affirmed the IJ's decision and dismissed the appeal. J.A. at 8-9. Kouljinski filed a timely petition for review in this court of the BIA's decision.

B. The Hearing

At the hearing on November 12, 2004, Kouljinski testified that he was born in Leningrad, Russia, in 1952, that he is Jewish, that he had been married to his wife for over twenty years, and that they have a daughter, then sixteen years old. Kouljinski testified that his employment options in the former Soviet Union were limited because, as a Jew, he could not be a member of the Communist Party. In 1980, when he was working for a restaurant, Kouljinski's application for a managerial position was "not approved by the District Party Committee," and he stated that the District Party Committee "sen[t] documents to me suggesting that I need to quit." J.A. at 102 (Hr'g Tr. at 35). As a result of that pressure, Kouljinski quit; to obtain another position he moved from Leningrad to Kronstadt, a city twenty kilometers from Leningrad. KGB agents then demanded that he report to them while he was working in Kronstadt. While he was working as a bartender in an establishment frequented by military personnel, the KGB arrested him and detained him overnight, demanding that he listen to conversations in the bar and pass along information to the KGB about anyone planning to leave the Soviet Union and seek asylum elsewhere.

After his father died in the late 1980s, Kouljinski learned from some of his father's papers how to manufacture jewelry that resembled Faberg é products; once it became legal to do so, he started his own business. Soon thereafter, Kouljinski faced problems from racketeers, who pressured him to manufacture counterfeit Faberg é products, but he refused. On his application for asylum, Kouljinski stated that an entity called the "Ost Corporation" began threatening and pressuring him, demanding that he merge his business with theirs because his jewelry-making "was a 'Russian' practice and tradition, part of the Russian culture, and therefore not suitable for Jews." J.A. at 708 (2004 Asylum Application). Ms. Kouljinski testified that they frequently received threatening calls at night and that windows in their house were broken. The racketeers demanded thirty percent of his revenue, and Kouljinski testified that when he attempted to report the extortion to the police, he was laughed at. Ultimately, Kouljinski decided to shut down his production and flee to the United States.

While Kouljinski was in the United...

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