Husyev v. Mukasey

• Decision Date: 16 June 2008
• Docket Number: No. 05-75177.,05-75177.
• Citation: 528 F.3d 1172
• Parties: Hennadiy Leonidovich HUSYEV; Tetyana Hryhorivna Husyeva, Petitioners, v. Michael B. MUKASEY, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

528 F.3d 1172

Hennadiy Leonidovich HUSYEV; Tetyana Hryhorivna Husyeva, Petitioners, v. Michael B. MUKASEY, Attorney General, Respondent.

No. 05-75177.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 5, 2007.

Filed June 16, 2008.

Stacy Tolchin, Van Der Hout, Brigagliano & Nightingale, LLP, Los Angeles, CA, for the petitioners.

Stephen J. Flynn (briefs), Colette J. Winston (oral argument), United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency Nos. A79-290-596, A79-290-597.

Before: B. FLETCHER, WILLIAM C. CANBY, JR., and JOHNNIE B. RAWLINSON, Circuit Judges.

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. Husyev 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 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 with-holding 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 Hryhorivna 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 [e]thnicity" 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, Husyev 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 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 friends and family asserting that, because of their Russian ethnicity, the Husyevs 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 groups of thugs associated with this ultra-nationalist organization."

When Husyev's hearing continued, he testified further to his dealings with Kaplan. 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.

In an oral decision, the IJ examined Husyev's testimony about Kaplan and compared it to his statements to the asylum officer, concluding that "[q]uite clearly, the respondent has presented two dramatically different versions of events." The IJ decided that he was "constrained to find that respondent has not timely filed his application" because "respondent provided no plausible or believable explanation, when asked at the Asylum Office why he had not filed sooner, for his failure to mention Mr. Kaplan and Mr. Kaplan's malfeasance." He also noted the lack of corroboration of any of the alleged activities of Mr. Kaplan. The IJ then ruled that Husyev had failed to demonstrate by clear and convincing evidence that he had filed within a reasonable time after the expiration of his legal status. He accordingly denied Husyev's application for asylum as untimely.

Turning to Husyev's application for withholding of removal and relief under the Convention Against Torture (CAT), the IJ noted that in his initial declaration and again before the asylum officer, Husyev "failed to mention that he had given some fifteen public speeches attacking Ukrainian Nationalists and that it was because of these speeches, at least in part, that he became well known and a target of the Ukrainian Nationalists." The IJ also emphasized that he would have expected that Husyev could produce documentary evidence of his fifteen public speeches, and "the failure to corroborate his claim ... undermine[d] [Husyev's] credibility." The IJ went on to note that Husyev's version of the story was also implausible in light of the documentary evidence presented in the record, including evidence of country conditions. He therefore concluded that Husyev's testimony was not credible. As a consequence, Husyev had failed to establish past persecution or the likelihood of future persecution. The IJ also found that, in the alternative, "the respondent cannot show any realistic possibility that he would be persecuted in the Ukraine and certainly no possibility that he would be persecuted country wide in Ukraine." The IJ found that Husyev "could relocate to another part of the Ukraine" where a majority of the population identifies itself as ethnically Russian. The IJ accordingly denied withholding of removal. He then went on to deny relief under the Convention Against Torture.

Husyev appealed to the BIA. The BIA dismissed the appeal, adopting and affirming the decision of the IJ. This petition for review followed.

DISCUSSION

We review de novo questions of law, Monjaraz-Munoz v. INS, 327 F.3d 892, 895 (9th Cir.2003). We...