Kuhai v. Immigration & Nat'l Serv., No. 99-1488

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore Cudahy, Easterbrook and Kanne; Kanne
Citation199 F.3d 909
Parties(7th Cir. 1999) Julia Kuhai, Petitioner, v. Immigration and Naturalization Service, Respondent
Decision Date09 December 1999
Docket NumberNo. 99-1488

Page 909

199 F.3d 909 (7th Cir. 1999)
Julia Kuhai, Petitioner,
v.
Immigration and Naturalization Service, Respondent.
No. 99-1488
In the United States Court of Appeals For the Seventh Circuit
Argued October 1, 1999
Decided December 9, 1999

Petition for Review of an Order of the Board of Immigration Appeals. No. A 72 669 353

Page 910

Before Cudahy, Easterbrook and Kanne, Circuit Judges.

Kanne, Circuit Judge.

Julia Kuhai, an ethnic Ukrainian and citizen of Uzbekistan, appeals the denial of her petition for asylum by the Board of Immigration Appeals ("Board"). She claims that the Board erred by determining that she was a citizen of Ukraine and ordering her to be deported there without allowing her to brief the issue. Because we agree that Kuhai deserves an opportunity to brief the question whether she is a citizen of Ukraine, we remand the case for further proceedings.

I. History

Julia Kuhai is a forty-nine-year-old citizen of Uzbekistan. She was born, however, in Cherkasi, a town of the then Soviet Union. Now, Cherkasi is encompassed by Ukraine, and her mother and sister still reside there. At age seventeen, Kuhai left Cherkasi to assist victims of an earthquake

Page 911

in Tashkent, then the capital of the Soviet Republic of Uzbekistan. She remained in Tashkent, married and had a child. Kuhai later divorced her husband, a Polish national and Uzbek citizen.

In 1991, Uzbekistan became an independent state, and Kuhai, a permanent resident since 1967, became a citizen of the new nation. The new regime officially favored the indigenous Uzbek and Tajik populations. Non-Muslim Slavs, such as Kuhai, lost their jobs, were treated in a hostile manner and were often threatened with physical harm. In 1991, Kuhai was fired from her job as a crane operator because she was a Russian-speaking person. She was unable to attend her Russian Orthodox church, she lost her apartment and her neighbors told her to leave the country.

In December 1992, Kuhai left Uzbekistan. She first visited St. Petersburg, Russia, then ten days after she departed Uzbekistan, entered the United States as a visitor. On October 1, 1993, she filed an application for asylum on the basis of her social group. In her application, Kuhai claimed that she had suffered past persecution in Uzbekistan and that she feared that her "freedom would be threatened" if she was forced to return. She also stated that she left Ukraine when she was young, and she "lost her citizenship rights" in Ukraine.

On February 24, 1994, her application was denied by the Immigration and Naturalization Service ("INS"). On March 18, 1994, INS issued an Order to Show Cause as to why Kuhai should not be deported for remaining in the United States beyond her visitor allowance. At a hearing on July 22, 1994, Kuhai conceded deportability but declined to designate a country for deportation. The immigration judge designated Uzbekistan as the country where she would be deported if deportation became necessary.

On August 4, 1994, Kuhai reapplied for political asylum, again claiming both past persecution and a well-founded fear of persecution. In January 1995, she had a hearing on the merits of her case. The immigration judge denied Kuhai's application and provided three reasons for his denial. First, Kuhai's treatment in Uzbekistan, while unfair, did not amount to persecution within the meaning of sec. 1101(a)(42) of the Immigration and Nationality Act ("Act"), 8 U.S.C. sec.sec. 1101 et seq. Second, Kuhai was free to return to Ukraine because she was born in that country. Third, her reason for not wanting to return to Ukraine was that "she had a better job in Uzbekistan and apartment there and would not be able to obtain a job or similar apartment in the Ukraine." As such, Kuhai did not establish her eligibility for asylum or meet the standard for withholding of deportation. The immigration judge granted Kuhai's request for voluntary departure and designated Uzbekistan as the country for deportation if Kuhai failed to self-deport.

On January 17, 1995, Kuhai appealed the immigration judge's decision to the Board. In her brief to the Board, she argued that the immigration judge failed to consider whether Kuhai held a well-founded fear of future persecution if she were forced to return to Uzbekistan. In February 1999, the Board issued a final order adopting and affirming the immigration judge's decision. However, the Board chose to modify the country of deportation designated by the immigration judge from Uzbekistan to Ukraine, based upon an advisory opinion given by the State Department that Kuhai should have Ukrainian citizenship. The Board did not address Kuhai's fear of future persecution in Uzbekistan, because it noted that, as a Ukrainian citizen, she could return to Ukraine. As such, Kuhai was not a refugee from a country in which she had citizenship.

II. Analysis

In considering Kuhai's claims under the Act, we review legal questions de

Page 912

novo. See Sayaxing v. INS, 179 F.3d 515, 519 (7th Cir. 1999). We defer to the factual findings of the Board and will reverse only if the record lacks substantial evidence to support its factual conclusions. See Draganova v. INS, 82 F.3d 716, 720 (7th Cir. 1996).

Under the Act, Congress authorized the Attorney General to grant asylum to aliens who are "refugees." See 8 U.S.C. sec. 1158(b)(1). A "refugee" is an alien who is unable or unwilling to return to her country of origin "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. sec. 1101(a)(42). According to this definition, eligibility for asylum is conditioned on either of two grounds: past persecution or a well-founded fear of persecution. See Sayaxing, 179 F.3d at 519; Iliev v. INS, 127 F.3d 638, 641 (7th Cir. 1997).

Although she initially claimed both to have suffered persecution in the past and to have a well-founded fear of...

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6 practice notes
  • Immigration; removal orders; countries to which aliens may be removed,
    • United States
    • Federal Register January 05, 2005
    • January 5, 2005
    ...opportunity to apply for protection as appropriate from those countries. See, Kossov v. INS, 132 F.3d 405 (7th Cir. 1998); Kuhai v. INS, 199 F.3d 909 (7th Cir. 1999); but see Andriasian v. INS, 180 F.3d 1033, 1041 (9th Cir. 1999) (wherein the agency agreed that alien was entitled to remand ......
  • Nonimmigrants; removal orders, countries to which aliens may be removed,
    • United States
    • Federal Register July 19, 2004
    • July 19, 2004
    ...or relied upon the implication of such an interpretation to find error in considering applications for asylum. See, e.g., Kuhai v. INS, 199 F.3d 909 (7th Cir. 1999) (designation altered without chance to address issues); Andriasian v. INS, 180 F.3d 1033, 1038-39 (9th Cir. 1999) (designation......
  • Najjar v. Ashcroft, Nos. 99-14391
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • July 18, 2001
    ...removal countries were improvidently designated under § 1253(a). For the first time at oral argument, the Al Najjars cited Kuhai v. INS, 199 F.3d 909 (7th Cir. 1999), Andriasian v. INS, 180 F.3d 1033 (9th Cir. 1999), and Kossov v. INS, 132 F.3d 405 (7th Cir. 1998), to support their contenti......
  • Himri v. Ashcroft, No. 03-71152.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 2, 2004
    ...(9th Cir.2003), amended by 339 F.3d 1012(9th Cir.2003). However, we review the IJ's statutory interpretation de novo. Id.; Kuhai v. INS, 199 F.3d 909, 911-12 (7th B. Kuwait 1. Asylum We agree that Haifa El Himri's application for asylum is time-barred due to her failure to bring the claim w......
  • Request a trial to view additional results
4 cases
  • Najjar v. Ashcroft, Nos. 99-14391
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • July 18, 2001
    ...removal countries were improvidently designated under § 1253(a). For the first time at oral argument, the Al Najjars cited Kuhai v. INS, 199 F.3d 909 (7th Cir. 1999), Andriasian v. INS, 180 F.3d 1033 (9th Cir. 1999), and Kossov v. INS, 132 F.3d 405 (7th Cir. 1998), to support their contenti......
  • Himri v. Ashcroft, No. 03-71152.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 2, 2004
    ...(9th Cir.2003), amended by 339 F.3d 1012(9th Cir.2003). However, we review the IJ's statutory interpretation de novo. Id.; Kuhai v. INS, 199 F.3d 909, 911-12 (7th B. Kuwait 1. Asylum We agree that Haifa El Himri's application for asylum is time-barred due to her failure to bring the claim w......
  • Petrovic v. INS, No. 99-1882
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • January 10, 2000
    ...is our responsibility to set the record straight and return the case to the Board for further consideration. See, e.g., Kuhai v. I.N.S., 199 F.3d 909, 914 (7th Cir. Dec. 9); see generally Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 490, 71 S. Ct. 456, 466 Petrovic sought to demonstrat......
  • Mamedov v. Ashcroft, No. 03-1393.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • November 1, 2004
    ...Jew and many Muslims disapprove strongly of mixed marriages. Cf. Guchshenkov v. Ashcroft, 366 F.3d 554, 556 (7th Cir.2004); Kuhai v. INS, 199 F.3d 909, 910 (7th Cir.1999). He also claims to have been beaten by police officers because of his being Jewish. At their asylum hearing the Mamedovs......

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