Kuschchak v. Ashcroft
| Decision Date | 03 May 2004 |
| Docket Number | No. 03-1103.,03-1103. |
| Parties | Yaroslav P. KUSCHCHAK, Petitioner, v. John D. ASHCROFT, United States Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Royal F. Berg (argued), Chicago, IL, for Petitioner.
George P. Katsivalis, Department of Homeland Security, Office of the District Counsel, Chicago, IL, Rena Curtis (argued), Department of Justice, Civil Division, Immigration Litigation, John D. Ashcroft, Department of Justice, Washington, DC, for Respondent.
Before FLAUM, Chief Judge, and POSNER and RIPPLE, Circuit Judges.
Petitioner Yaroslav Kuschchak seeks review of an adverse decision of the Board of Immigration Appeals (the "BIA" or "Board") that deemed his application for asylum abandoned. For the reasons set forth in the following opinion, we deny the petition and affirm the decision of the BIA.
Mr. Kuschchak is a native of the former Soviet Union and a citizen of the Ukraine Republic. He arrived in the United States on July 15, 1996, as a visitor for pleasure. On June 11, 1998, Mr. Kuschchak filed an application for asylum.
In his asylum application, Mr. Kuschchak stated that his father had been a Ukrainian police officer involved in an investigation of high-level government officials. He explained that A.R. 148. Mr. Kuschchak stated that individuals in the Ukrainian government believed that other family members also possessed incriminating evidence, and he and his family moved from town to town seeking safety. According to Mr. Kuschchak's affidavit, "[a]lmost all the people who were in possession of any kind of information pertaining [to] this case are now dead." Id. Furthermore, the officials targeting his family only had become more powerful over time and therefore he and his family, at least at the time of the affidavit, were still at risk. See id.
When the asylum office did not approve Mr. Kuschchak's application, Mr. Kuschchak was placed in removal proceedings.
On March 23, 1999, Mr. Kuschchak and his attorney attended a master calendar hearing before an Immigration Judge ("IJ"). At that hearing, Mr. Kuschchak's counsel indicated that Mr. Kuschchak would like to apply for adjustment of status based on his selection for the diversity lottery. The IJ believed that it was unlikely, based on Mr. Kuschchak's lottery number, that a visa would become available. Consequently, the IJ determined that it would not be "an appropriate use of the respondent's money and my time to consider an adjustment application for which he's not currently eligible." A.R. 87. However, the IJ stated that, if it appeared that a visa would become available, he would entertain Mr. Kuschchak's motion for an expedited hearing and his application for adjustment of status.
At the same hearing, Mr. Kuschchak's attorney indicated that Mr. Kuschchak wished to proceed on his asylum application. After a cursory review of the papers, the IJ noted that Mr. Kuschchak had not filed an asylum application within one year of his arrival in the United States and further noted that there was no such requirement for withholding of removal. Mr. Kuschchak's attorney responded that he "would like to make the application a request for withholding of removal, but if, in fact, I discuss with Mr. Kuschchak and discover that there was, you know, exceptional circumstances which resulted in the late filing I would like an opportunity to file a brief in support of that." Id. at 89. The IJ agreed to "set the case up for a merits hearing on the application for withholding of removal." Id. at 90.
Finally, the IJ tended to some scheduling matters. The IJ inquired: Id. at 91. Mr. Kuschchak's attorney responded that he believed Mr. Kuschchak was "going to be the only witness." Id. The IJ then set the hearing for November 5, 1999.
On August 13, 1999, Mr. Kuschchak's attorney filed an "Emergency Motion to Advance Hearing." Id. at 130. In that motion, Mr. Kuschchak "respectfully request[ed] that this Court advance his hearing." Id. The motion first acknowledged that the IJ had "scheduled the next hearing for the Respondent on November 5, 1999." Id. However, the motion continued, "all applications for adjustment of status based on the DV-99 diversity immigrant program [must] be completed and adjudicated prior to September 30, 1999." Id. In short, if Mr. Kuschchak did not have his adjustment of status adjudicated prior to September 30, 1999, his opportunity for the diversity lottery would be lost.
The IJ granted the motion the same day it was filed. The order provided that "the above captioned case is scheduled for a[n] Individual hearing before the Immigration Court on Aug. 27, 1999 at 4:00 p.m." Id. at 246. The order also required "[a]ny additional documents by Aug. 20, 1999." Id.
Mr. Kuschchak and his attorney appeared for the hearing on August 27, 1999. After presenting the arguments with respect to the adjustment of status application, the IJ denied the application for lack of eligibility. The IJ then asked Mr. Kuschchak's attorney to proceed with the presentation of evidence on any other relief that Mr. Kuschchak was seeking. The following colloquy between Mr. Kuschchak's attorney and the IJ ensued:
A. Well, we're not prepared to go ahead with any other relief today.
Q. Well, this is the time for it.
A. We're not prepared to go ahead with anything else. The only reason we did the motion was to obtain this one. Originally (indiscernible) that November date. It was advanced in order to allow or proceed with the adjustment based on that. And I'd like to take an appeal from the decision denying this.
Id. at 109. Mr. Kuschchak's attorney also referenced the March hearing and stated that
there was a note in there [his file] that if his number becomes available we should at that time file for that [adjustment of status]. Being that the number is available in September we filed based upon the available number. But I am not prepared to proceed any further at this time. I was here for the sole purpose that it was an emergency hearing due to the availability of numbers, due to the fact that he did qualify for that. That was the sole purpose of our motion.
Id. at 109-10. The IJ then warned counsel that "either you go ahead with the asylum application and withholding now or I'll consider it abandoned if you don't." Id. at 110. Counsel simply responded that he would "take an appeal from that, too." Id.
The IJ then tried a different approach and asked Mr. Kuschchak's counsel if he could "make a suggestion." Id. The IJ stated:
I would be willing to recess the matter, let you talk to your client, explain to him what's happened, and, you know, within a reasonable period of time come back, elicit information from him on his asylum application so you could make a record and you can go forward on this....
Id. Mr. Kuschchak's counsel, however, flatly refused; he stated: Id. at 111.
Finally, the IJ addressed Mr. Kuschchak directly:
Mr. Kuschak,1 this, you have a complicated situation. Your attorney has sought adjustment of status based on the diversity visa program. I have told him I don't believe that you are eligible. He disagrees with me. He's already told me [he] is going to ask another court to review my decision that you're not eligible.
Now, at the earlier hearing Miss Cho, your then attorney, stated that you wanted to obtain political asylum and withholding. In other words, be allowed to remain in the United States because of a claim of persecution. I have told [your attorney] that since I am denying the request for permanent residence on the diversity visa program that he should now go ahead by presenting your case on political asylum so all matters can be completed today. He said that he is not prepared to proceed with that now. Now, Mr. Kuschak, I've told him that I am going to go give you my decision on all matters today, and if he doesn't proceed on the asylum I'll consider it, and withholding I'll consider it abandoned. I've also told him that I'm willing to delay proceeding on that for a time this afternoon to give you time to discuss this before you are called to testify. He is insistent that he is not willing to do that.
I am telling you this so that you know the conversations that I've just had with him. I also want you to know that since you are the one directly affected that you may lose the opportunity to present information on your asylum claim if you refuse to testify and your attorney refused to call you today.
Id. at 111-12. The IJ then allowed Mr. Kuschchak to discuss the matter with his attorney in private.
After the recess, and after counsel again refused to elicit testimony from Mr. Kuschchak on his asylum application, the IJ explained to Mr. Kuschchak that the consequences of his attorney's decision were that the applications for asylum and withholding of removal would be deemed abandoned. The IJ then asked Mr. Kuschchak: "Do you abide by your attorney's decision?" Mr. Kuschchak responded: Id. at 115-16. The IJ therefore "accept [ed] [counsel's] decision as that, as your decision as well." Id. at 116.2 The IJ therefore deemed abandoned Mr. Kuschchak's applications for asylum and withholding of...
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