Kossov v. I.N.S., 96-3910

• Citation: 132 F.3d 405
• Decision Date: 05 January 1998
• Docket Number: No. 96-3910,96-3910
• Parties: Lioudmila KOSSOV and Pavel Kossov, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 405

132 F.3d 405

Lioudmila KOSSOV and Pavel Kossov, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 96-3910.

United States Court of Appeals,

Seventh Circuit.

Argued Oct. 24, 1997.

Decided Jan. 5, 1998.

Mary L. Sfasciotti (argued), Chicago, IL, for Petitioner.

Janet Reno, U.S. Atty., Office of the U.S. Atty. General, Washington, DC, Samuel Der-Yeghiayan, Immigration & Naturalization Service, Chicago, IL, Thomas P. Walsh, Office of the U.S. Atty. Civil Div., Chicago, IL, David M. McConnell, Kristal A. Marlow, Terri J. Lavi, James A. Hunolt, Dept. of Justice Civil Div., Immigration Litigation, Washington, DC, Tina Potuto (argued), Office of Immigration Litigation Civil Div., Washington, DC, for Respondent.

Before CUMMINGS, BAUER and ROVNER, Circuit Judges.

CUMMINGS, Circuit Judge.

Lioudmila Kossov and her husband, Pavel, came to the United States as visitors from the Soviet Union in 1991. Mrs. Kossov was born in the portion of the former Soviet Union that is now Russia and moved to what is now Latvia when she was seventeen. Mr. Kossov was born in what is now Latvia, of Russian parents, and lived there until the time the couple came to the United States.

The Kossovs held tourist visas that authorized them to stay in the United States for up to six months. During that period, Mrs. Kossov filed an application for asylum with the Chicago office of the Immigration and Naturalization Service (INS). After approximately two years, the INS denied the asylum application and instituted deportation proceedings against both of the Kossovs.

At a hearing on December 7, 1994, the Kossovs conceded deportability on the ground that they had overstayed the term of their tourist visas. They sought asylum and withholding of deportation, however, and denied the INS' claims that Mrs. Kossov was a native of Russia and a citizen of Latvia and that Mr. Kossov was a native and citizen of Latvia. Both of the Kossovs argued that they were in fact stateless because the Soviet Union, the country in which they had been born and from which they had departed for the United States, no longer existed. As a result, they each declined to designate a country of deportation, stating instead that they planned to base their arguments for asylum on facts relating to Latvia, which was the country in which they had last resided. The Immigration Judge (IJ) put off specifying a country of deportation until the hearing on the merits.

In January of 1995, Mrs. Kossov filed a new application for asylum, stating that she desired asylum from Latvia based on past persecution and a fear of future persecution there on account of her Pentecostal Christian religion and her Russian ethnicity. Mr. Kossov was included in his wife's asylum application but did not file an application of his own.

On March 29, at the Kossovs' request, their attorney withdrew from the case. The IJ granted a continuance until April 20 to allow the Kossovs to obtain new counsel. When the hearing reconvened, however, the Kossovs had not yet located an attorney and therefore appeared pro se. The Kossovs indicated that they would prefer to conduct the hearing through a Russian interpreter, and so the judge continued the case until May 4. On that date, petitioners again appeared pro se (but with an interpreter present), and the judge conducted a hearing on the asylum application.

During the hearing, Mrs. Kossov declared that she was stateless, because the Soviet Union no longer existed. The INS disputed this claim and asked that the IJ designate Russia as Mrs. Kossov's country of deportation. The judge complied. Similarly, Mr. Kossov declared that he was stateless and declined to choose a country of deportation. At the request of the INS, the IJ designated Latvia as Mr. Kossov's country of deportation.

It appears from the IJ's oral decision that the bulk of the hearing concerned evidence of past persecution and fear of future persecution in Latvia, not in Russia. As noted previously, Mrs. Kossov's application for asylum had also been directed to Latvia, rather than Russia. Although the Kossovs were asked some questions concerning Russia, these seem almost to have been an afterthought. In addition, although a State Department country report on conditions in Latvia was part of the record at the hearing, no such report concerning Russia was introduced. At the conclusion of the hearing on May 4, 1995, the IJ denied the application for asylum but granted the Kossovs the privilege of voluntary departure from the United States in lieu of deportation. In the alternative, the judge ordered the Kossovs deported to Russia.

The Kossovs appealed the decision to the Board of Immigration Appeals (BIA), on the ground that they had proven their eligibility for asylum. They did not argue any error in the designation of their country of deportation. The BIA affirmed the IJ's ruling. Although it characterized the order it was reviewing as denying asylum "and withholding of deportation to Russia and Latvia," the BIA's written opinion focused almost exclusively upon evidence concerning past and future persecution in Latvia, rather than in Russia. The BIA cited the State Department's report on Latvia, which stated that people in the Kossovs' position would likely be eligible for citizenship by the year 2003 and that Christians no longer suffered persecution in the post-Soviet Latvia. If the Kossovs refused voluntary departure, they were to be deported to Russia.

Following the BIA's decision, the Kossovs petitioned this Court for review. They argue that the IJ improperly failed to designate countries of deportation, that the order of deportation to Russia was unwarranted because the application and hearing were directed toward Latvia, and that they have sufficiently proven their case for asylum as to Latvia. Because we conclude that the IJ committed errors that severely prejudiced the Kossovs' ability to present their claim for asylum, we vacate the BIA's decision and remand for further proceedings.

I. JURISDICTION OVER THE APPEAL

The INS argues that the Kossovs may not raise before this Court the issue of the IJ's designation of their country of deportation, because they did not specifically argue it before the BIA. This omission, the INS claims, constituted a failure to exhaust available administrative remedies and therefore deprives this Court of jurisdiction. According to the INS, only the propriety of the decision to deny asylum is properly before us.

We do not understand the Kossovs to argue that the IJ failed to designate a country of deportation at all. If they do make such an argument, it is patently wrong. At the outset of the hearing on the merits, the IJ explicitly designated Russia as the country of Mrs. Kossov's deportation and Latvia as the country of Mr. Kossov's deportation. The deeper question that the Kossovs most certainly do raise, however, is whether these designations, and the subsequent order deporting both Mr. and Mrs. Kossov to Russia, allowed the couple an adequate opportunity to defend themselves against that deportation. If the INS' jurisdictional argument is correct, this Court may not reach that vital issue.

Title 8 of the United States Code, § 1105a(c) states, "An order of deportation or of exclusion shall not be reviewed by any court if the alien has not exhausted administrative remedies available to him as a matter of right under the immigration laws and regulations." This Court has further stated that the BIA "cannot be expected to resolve issues that the alien should have raised, but did not."...