Koliada v. Immigration & Naturalization Service

Decision Date12 June 2001
Docket NumberNo. 00-3421,00-3421
Citation259 F.3d 482
Parties(6th Cir. 2001) Youri K. Koliada, Petitioner, v. Immigration and Naturalization Service, Respondent. Submitted:
CourtU.S. Court of Appeals — Sixth Circuit

Charles H. Kuck, LITTLER MENDELSON, Atlanta, Georgia, for Petitioner.


Before: MARTIN, Chief Judge; NORRIS, Circuit Judge; QUIST, District Judge. *



Youri K. Koliada, a native and citizen of the Ukraine, requested asylum and withholding of removal from the United States, which an administrative immigration judge denied on February 26, 1997. The Board of Immigration Appeals affirmed this denial on March 9, 2000. Koliada now petitions for review of the Board's decision, arguing that his well-founded fear of persecution merits reversal. For the following reasons, we AFFIRM the Board's decision and DENY Koliada's petition for review.

A. Facts Regarding Koliada

Mr. Koliada grew up in a family with an anti-communist history and convictions. 1 His grandfather was a wealthy landowner who was abducted by communists in 1937, never to return. Koliada's wife's grandfather was exiled to Siberia for seventeen years. When Koliada was a child, communist militia interrogated his family about his father's activities and searched for anti-communist literature in his home. His father, who did not participate in biannual mandatory rallies for the communist party, was arrested and exiled to Siberia for two years beginning in 1956.

Koliada experienced personal intimidation by government authorities as well. In 1976, he was singled out by militia members for attending Easter church services and told that doing so jeopardized his chances of going to college. Koliada was also threatened with expulsion from college in 1977 for failing to attend a communist rally. While serving a three-month stint in the Soviet Army that was a prerequisite to graduation, he tried to keep his commanding officer from beating a friend in his unit. The commander sent him to military prison for seven days of labor. After completing his education in 1981, he began working as an engineer with a government business in Poltava. Soon after, the KGB began checking up on Koliada and questioning his friends, who were renowned anti-communists. Soviet authorities had persecuted two of his friends for their political beliefs.

Although he was never imprisoned, the communist militia took him into custody several times because of his political views. In 1985 the militia put him under house arrest for three months with orders not to leave his house from 10:00 p.m. until 5:00 a.m. No explanation accompanied the order. The militia disconnected Koliada's telephone at this point as well.

In 1988, Koliada joined the Ukrainian Social Group in a hunger strike to protest politically motivated arrests of some group members. The militia arrested Koliada and searched his house on July 15. While interrogating Koliada, the militia showed him photographs of him with his friends and threatened to kill his family. Although he denied membership in the Group, he affirmed his support for its cause: Ukrainian independence from the Soviet Union. The interrogating officer then punched Koliada repeatedly in the stomach.

Koliada began attending the meetings of various anti-communist groups in late 1989. Because these groups were illegal under Soviet law, militia officers arrested him and others who attended the meetings and released them after they paid fines.

The Ukrainian parliament passed a declaration of sovereignty in July 1990, and in August declared Ukraine independent of the Soviet Union. The Ukraine became a charter member of the Commonwealth of Independent States with the ratification of the Belovzhskoe Agreement in December. Leonid Kravchuk, a former Communist turned nationalist, became Ukraine's first president. Koliada continued his anti-communist activities.

Two militia officers took Koliada to a local militia station in March 1992 and told him that if he continued with his political activities his family would be killed. These officers told Koliada that, although the government officials' titles had changed, they were the same people as before and would enforce similar policies. The officers then punched him in the face and released him.

In February 1993, a friend gave Koliada some documents indicating proof of government-owned businesses' payments to organized criminals. On March 8, militia officers arrested him and interrogated him about these documents. When Koliada denied knowledge of the papers, one of the officers punched him in the abdomen until he lost consciousness. When he returned to his apartment, he found that it had been ransacked and the documents were missing.

Two years after this final encounter with the Ukrainian militia, a pen pal invited him to visit Cleveland, Tennessee. Koliada entered the United States on March 24, 1995, as a nonimmigrant visitor with authorization to remain until March 22, 1996.

B. Other Testimony

Jimmy Williams Burns, a music professor at Lee College in Cleveland, Tennessee, testified on Koliada's behalf at his hearing based on Burns's visits to the Ukraine and his continued contact with teachers at a school in Poltava, Ukraine. He stated that a teacher-and student-exchange program had allowed him to visit and work in the Ukraine for six weeks in 1993 and again in 1994. Burns also testified that he believed Koliada might be subject to intimidation if he were to return to Poltava, perhaps more so than in more cosmopolitan cities such as Odessa or Kiev.

C. The State Department's Assessment of the Ukraine

The immigration judge admitted the U.S. State Department's June 1996 Ukraine Profile of Asylum Claims and Country Conditions into evidence. The Ukraine profile indicates in its overview that the Ukraine continued to make progress in the observation of human rights. "Reports of human rights violations, already low, decreased [between 1994 and 1996]," the profile reads. "Government restrictions on freedom of religion and cultural expression have been largely lifted, and the Communist Party, whose heavy hand and totalitarian ideology were pervasive in Ukrainian life, no longer rules the country." The profile notes, however, that problems remain, including beatings by police and prison officials, unreformed legal and prison systems, discrimination against women, societal anti-Semitism, and ethnic tensions between Russians and Tatars in the Crimea. The State Department profile also recognizes that the personnel of the former KGB, now nationalized and renamed the Security Service of Ukraine, has changed little since 1991 and may still not tolerate political dissent. Still, the profile says these individuals present no real threat of mistreatment to those who supported Ukrainian independence at some time in the past.

The State Department noted that as Ukrainian leaders reluctantly accepted elements of Mikhail Gorbachev's liberalization of the Soviet Union in the late 1980s, some who were determined to resist change became more forceful in their determination to preserve the status quo. Still, "[t]he post-independence period has seen the emergence of a multi-party system reflecting a broad range of political viewpoints." Parliamentary elections in 1994 were apparently conducted fairly, and "[t]here is no evidence that rank and file members [of different political parties] are being targeted because of their political views." The State Department attributes the high rate of migration from the Ukraine to a depressed economy and damaged ecology rather than to politics.

D. Procedure

Koliada's permission to remain in the United States expired on March 22, 1996, and on April 27 the Immigration and Naturalization Service ordered him to show cause why he should not be deported. Koliada then filed an application for asylum and withholding of deportation and, in the alternative, voluntary departure, which the Service received on November7. On February 26, 1997, after a hearing on the merits of his application, the immigration judge denied Koliada's application for asylum and withholding of deportation. The judge did not order immediate deportation, but granted Koliada's motion for voluntary departure, to occur no later than August 26. Koliada appealed the denial of his application for asylum and withholding of deportation to the Board of Immigration Appeals, which affirmed the immigration judge on March 9, 2000. Koliada filed a timely petition for review by this Court on April 6.

A. Jurisdiction

The Board of Immigration Appeals had jurisdiction over Koliada's appeal from the immigration judge's decision pursuant to 8 C.F.R. § 3.1(b)(2) (1999). Prior to passage of the Immigration Reform and Immigrant Responsibility Act (the Reform Act), those who wished to appeal any decision of the Board would file a petition for review in the Court of Appeals for the appropriate circuit. See 8 U.S.C. § 1105a (1995). The effective date for the new jurisdictional provisions of the Reform Act was "the first day of the first month beginning more than 180 days" after the Reform Act's enactment, which happened on September 30, 1996. Therefore, the effective date for the relevant Reform Act provisions was April 1, 1997.

A deportation order becomes final "upon dismissal of an appeal by the Board of Immigration Appeals," among other ways. 8 C.F.R. § 241.31 (2001). As to cases in which a final deportation order was filed after October 30, 1996, and which were pending before April 1, 1997, the Reform Act's transitional rules apply. The Reform Act's permanent provisions pertain to removal proceedings initiated by the Service on or after April 1, 1997...

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