Koval v. Gonzales

• Decision Date: 16 August 2005
• Docket Number: No. 04-3652.,04-3652.
• Citation: 418 F.3d 798
• Parties: Marina KOVAL and Valeriy Vagil, Petitioners, v. Alberto R. GONZALES, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

418 F.3d 798

Marina KOVAL and Valeriy Vagil, Petitioners, v. Alberto R. GONZALES, United States Attorney General, Respondent.

No. 04-3652.

United States Court of Appeals, Seventh Circuit.

Argued April 11, 2005.

Decided August 16, 2005.

Stephen D. Berman (argued), Chicago, IL, for Petitioners.

Karen Lundgren, Department of Homeland Security, Office of the District Counsel, Chicago, IL, Rodney Morris (argued), Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before POSNER, RIPPLE and SYKES, Circuit Judges.

RIPPLE, Circuit Judge.

Petitioners Marina Koval and Valeriy Vagil seek review of a decision of the Board of Immigration Appeals ("BIA" or "Board") that affirmed the Immigration Judge's ("IJ") denial of their request for asylum. For the reasons set forth in the following opinion, we grant the petition for review, reverse the judgment of the BIA and remand the case for further consideration.

I BACKGROUND

A. Facts

Mr. Vagil and Ms. Koval, husband and wife, are natives and citizens of Ukraine. They have at least one child who was born in the United States. Mr. Vagil entered the United States on May 17, 1996, with a visitor's visa that was valid until November 17, 1996. On July 4, 1996, Ms. Koval entered the United States with a visitor's visa that was valid until July 3, 1997. They both stayed in the United States longer than permitted, and the Immigration and Naturalization Service initiated removal proceedings. Both conceded removability, and Ms. Koval filed an application for asylum and for withholding of removal on their behalf. At a September 2003 removal hearing, Ms. Koval and Mr. Vagil testified that they feared returning to Ukraine because of their membership in the Church of Jesus Christ of Latter-Day Saints (the "Mormon Church").

1.

Ms. Koval presented the following testimony in support of her application. She was baptized into the Mormon Church around March 1993. At the time, she was a university student in Kiev, Ukraine. One month after her reception into the Church, she received a summons from the Soviet Intelligence Service ("KGB"). According to Ms. Koval, at the KGB office, she was interviewed by a man who stated that he knew that she had joined the Mormon Church. The agent also told Ms. Koval that young Americans were visiting Ukraine in order to obtain secret information about the country. The agent further said that the "American spies" were interested in young educated people, and in Ms. Koval particularly, because she was a physics student with access to "scientific research" and "new materials and super conductivity." A.R.185. He expressed his concern that, as a good citizen, Ms. Koval should not be in contact with the Americans. The agent also requested the addresses of the Americans and warned that Ms. Koval would be punished if she failed to comply.

In May 1993, while Ms. Koval was on vacation, her dorm room was searched; her books about the Mormon faith and her diary were missing. A week after this incident, Ms. Koval again was summoned by the KGB. She was interviewed by the same agent and another man. Ms. Koval testified that the agents told her that, because she had failed to provide any information and because she was attending the Mormon Church, she would not be allowed to continue her physics studies. The agents also warned that, if she did not cease her involvement with the Mormon Church, she "would be in some way isolated from the society because they did not want me allegedly to influence other people." A.R.188.

Despite these threats, Ms. Koval was allowed to graduate and to receive her master's degree in physics. However, according to Ms. Koval, she was denied entrance into the Ph.D. program because the KGB had denied her residence (a "propiska") in Kiev. A.R.188-89. Ms. Koval had earned all "A" grades and was the only student in her program to receive a "red diploma," a mark of distinction. A.R.189.

Without permission to stay in Kiev, Ms. Koval moved to her parents' home in Borispol, Ukraine, about twenty-five kilometers from Kiev. She applied for jobs in various departments at the local airport, at two factories and at a school, but she received no interviews. Ms. Koval testified that she believed that her inability to procure employment was because she had to complete a standardized job application form. The form required her to disclose that she had a sister living in the United States and that she was a member of an American church. Ultimately, Ms. Koval's father was able to find her work as a ticket checker at the airport where he was a pilot. She testified that the people who worked in this job were capable only "of some really simple jobs." A.R.194.

After one year and a half, Ms. Koval was hired by an Israeli airline. About one month later, however, she had to leave that position because "the KGB did not allow" her to obtain a passport for business travel outside of the former communist bloc countries. A.R.195. Ms. Koval was told that she could not receive the passport because her sister lived in the United States and because she "was involved with Americans." A.R.197. Ms. Koval later was hired by a Polish airline. At some point thereafter, she was granted a passport. In April 1994, she worked in the United States for about one month as an interpreter for a group of KGB agents and airport employees who were attending computer training. According to Ms. Koval, she was kept under close surveillance, and the KGB held the group members' passports and money in the hotel.

Ms. Koval met Mr. Vagil at a church meeting in 1995. She testified that, at the time, Mr. Vagil was "twice smaller his size of now because he was completely nervous, he was a nervous wreck. He didn't live at home. He lost his job." A.R.199. According to Ms. Koval, Mr. Vagil told her that sometimes he would not eat for several days and that he had not seen his parents in months. He told Ms. Koval that the KGB was calling his parents and had interrogated his mother. The agents had told Mr. Vagil's mother that, if they caught him, they would release him from custody with tuberculosis. According to Ms. Koval, in January 1996, the KGB again summoned Mr. Vagil's parents. Ms. Koval and Mr. Vagil decided that he no longer could remain in Ukraine. Ms. Koval bought him a plane ticket from the airline for which she worked and, in an effort to avoid detection, arranged for him to depart on a day different from the one listed on his ticket. Ms. Koval married Mr. Vagil two days before he left in May 1996.

After Mr. Vagil left Ukraine, a friend of Ms. Koval's mother called to say that the friend's husband was in jail and that the KGB had said they would release him if he reported about Ms. Koval. Ms. Koval testified that she began to notice that "every time I was working this specific flight," the head of the KGB was present. A.R.204. Also, "one guy" would be next to her "all the time" allegedly for training, and he would ask her questions such as how to pass information from Poland to America. A.R.204. Finally, on June 25, 1996, Ms. Koval again was summoned to meet with the KGB. She decided to leave Ukraine at that point.

After Ms. Koval's departure, the KGB directed her parents to sign a paper promising to bring her to the KGB if they saw her again. In August 1996, Ms. Koval's father was found dead. The death certificate listed the cause of death as drowning. Ms. Koval testified that her father was in excellent physical condition and that she did not believe that he had died of natural causes. Ms. Koval's sister stated in an affidavit that she believed their father had passed away because "he could not handle the stress caused by his daughter's persecution." A.R.559. Ms. Koval testified that she never was arrested, detained overnight or physically tortured by the KGB.

2.

Mr. Vagil also testified on his own behalf. He joined the Mormon Church in 1991. According to Mr. Vagil, he began receiving rude telephone calls in 1994 from unknown persons who asked him why he was attending the American church. He received about ten such calls between October and December 1994. In January 1995, the KGB interrogated him and told him that he was expected to provide a list of the Ukrainian members of his local parish and the names of the missionaries who worked with that church.

The following March, after Mr. Vagil had failed to provide such information, KGB agents warned him that, if he did not cooperate, they "would find the ways to ruin my career, my health, and they would be able just to simply throw me into jail." A.R.225.

In 1996, the KGB came to Mr. Vagil's parents' home in search of him; the KGB also summoned his parents for questioning and told them that Mr. Vagil would be harmed if he did not cooperate. Mr. Vagil became frightened and decided to leave the country. He testified that he never was arrested, detained or physically abused in Ukraine; his parents still live in Ukraine and are employed.

3.

In support of their application for asylum, Ms. Koval and Mr. Vagil submitted the testimony of Leonid Stonov, the international director of the Union of Councils of Jews in the Former Soviet Union, a human rights monitoring organization. He testified that Ms. Koval's application was consistent with his knowledge of the treatment of Mormons in Ukraine. Specifically, he stated that non-traditional religions such as Mormons are considered sects and face pressure from the official Russian Orthodox Church. He also testified that Ukraine society discriminates against all non-traditional religions in that such churches are not allowed to register; consequently, they cannot build churches, and their activities may be classified as illegal.

Ms. Koval and Mr. Vagil also sought to introduce the testimony of Yuriy Shvets regarding the activities of the KGB and its successor organization, the Security Service of Ukraine ("SBU"), with respect to Mormons. Shvets had worked as a...