Sagaydak v. Gonzales

• Decision Date: 04 May 2005
• Docket Number: No. 02-74299.,02-74299.
• Citation: 405 F.3d 1035
• Parties: Viktor Yaroslavovich SAGAYDAK; Nataliya Bogdanivna Sagaydak, Petitioners, v. Alberto GONZALES,<SMALL><SUP>*</SUP></SMALL> Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

405 F.3d 1035

Viktor Yaroslavovich SAGAYDAK; Nataliya Bogdanivna Sagaydak, Petitioners, v. Alberto GONZALES,^* Attorney General, Respondent.

No. 02-74299.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 6, 2004.

Filed May 4, 2005.

Tom Youngjohn, Federal Way, WA, for the petitioners.

Leslie McKay, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency Nos. A77-424-463, A77-424-462.

Before: HUG, TASHIMA, and PAEZ, Circuit Judges.

PAEZ, Circuit Judge.

To be eligible for asylum, an alien must, absent changed or extraordinary circumstances, file an asylum application within one year of arriving in the United States. 8 U.S.C. § 1158(a)(2). In the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Congress made clear that "no court shall have jurisdiction to review any determination of the Attorney General" with respect to whether the alien had met the one-year deadline or had failed to satisfy this time limit because of extraordinary circumstances. Pub.L. 104-208, § 604, 110 Stat. 3009-691 (1996) (codified at 8 U.S.C. § 1158(a)(3)); see also Hakeem v. INS, 273 F.3d 812, 815 (9th Cir.2001). However, in this case, we are confronted with an unusual situation: The lead petitioner argued that his untimely filing was due to extraordinary circumstances, but both the Immigration Judge ("IJ") and the Board of Immigration Appeals ("BIA") failed to address the issue. We hold that when the Attorney General fails to make a "determination," this court has jurisdiction to grant the petition and remand the case so that the agency charged with making this determination can properly do so.

Both petitioners also argued that they were targeted by their alleged persecutors on account of a protected ground. See 8 U.S.C. § 1101(a)(42)(A). The IJ disagreed, and the BIA summarily affirmed. We find that substantial evidence does not support the IJ's conclusion that the petitioners were targeted purely for personal punishment or revenge, rather than on the basis of Viktor's implied or actual political opinion, and we remand for the BIA to determine whether the petitioners have satisfied the remaining eligibility requirements for asylum, 8 U.S.C. § 1158, and withholding of removal, 8 U.S.C. § 1231.

I.

The petitioners in this case, Viktor and Nataliya Sagaydak, are citizens of Ukraine. Before immigrating to the United States, Viktor worked as a tax auditor for the Ukrainian government. During an audit of the Hidro Corporation ("Hidro"), Viktor uncovered an illegal tax-evasion scheme. Viktor discovered that Hidro, founded by a high-ranking government official, had evaded the payment of automobile import duties. When Viktor reported his findings to officials at Hidro, they attempted to bribe Viktor to change his report. They first offered him an envelope filled with valuable American dollars, and after he refused, they offered a vacation to Germany. Viktor refused both bribes and referred the matter to local prosecutors.

Ten days later, two men forcibly removed Nataliya from a bus and warned her that her husband "should be more agreeable with us, because if he will not agree with us, we know what we will do." Nataliya suffered a miscarriage three days after being assaulted, which she attributed to this incident.

Viktor also began receiving threats. Callers warned him to change his report, and reminded Viktor of Nataliya's abduction. A Hidro henchman also informed Viktor that "we will make a powder out of you."

Fearing for his safety, Viktor arranged for his cousin to drive him to work. While Viktor's cousin was driving alone in his car, equipped with tinted windows, he was shot. The cousin was supposed to be chauffeuring Viktor at that time, but Viktor had cancelled at the last moment. A Hidro thug warned Viktor that "next time, we are not going to shoot your brother, we will shoot you."¹

Viktor fled to the United States and arrived on September 17, 1997. After he had left Ukraine, the Sagaydaks' apartment was vandalized. Nataliya then joined Viktor in the United States. Even though both had left the country, two men threatened Viktor's father after inquiring about Viktor's whereabouts. Members of Nataliya's family were also involved in a suspicious car accident that Nataliya suspects was caused by Hidro officials.

Viktor filed for asylum on November 18, 1998, and included Nataliya in his application. During the removal proceedings, the IJ noted that Viktor had failed to apply within one year of arriving in the United States.² The Sagaydaks' attorney asked the IJ to consider the fact that Viktor had contacted his prior attorney long before the one-year deadline passed. The IJ responded that it was "not within his authority" to take that fact into account because, the IJ explained, federal law automatically precludes an alien from applying for asylum after being in the United States for more than one year.

The IJ explicitly found Viktor's testimony to be credible, and did not comment on Nataliya's credibility. We therefore accept each of their testimony as true. See Mashiri v. Ashcroft, 383 F.3d 1112, 1119 (9th Cir.2004); Kalubi v. Ashcroft, 364 F.3d 1134, 1137 (9th Cir.2004). The IJ nonetheless denied the Sagaydaks' applications for asylum, as well as their applications for withholding of removal under 8 U.S.C. § 1231(b)(3) and relief under the Convention Against Torture ("CAT"), 8 C.F.R. § 208.16(c). The IJ held that Viktor was "ineligible for asylum since he arrived in the United States on September 17, 1997, and did not apply for asylum until November 18, 1998, more than one year after his arrival." The IJ did not, however, address Viktor's argument that extraordinary circumstances had caused the delay. With respect to Nataliya, the IJ determined that she had filed within the one-year bar, and therefore considered the merits of her asylum application.

In addressing Viktor's claim for withholding of removal and Nataliya's claims for asylum and withholding, the IJ determined that the Sagaydaks failed to establish that they would be persecuted on account of a protected category. The IJ specifically rejected the Sagaydaks' contention that Ukrainian tax auditors constitute a bona fide social group. Moreover, the IJ reasoned that the Sagaydaks were facing harm because Viktor was involved in the prosecution of corrupt officials, not because of Viktor's membership in a protected class. Thus, the IJ ruled that "in the case of[Nataliya], there is not a well-founded fear of persecution based upon one of the five grounds, and for both respondents, there is not a clear probability of persecution based upon one of the five grounds that they will be persecuted if they return to the Ukraine." Additionally, the IJ found both petitioners ineligible for CAT relief because their persecutors were private citizens, not government officials.

The Sagaydaks appealed to the BIA, arguing in part that the IJ erred by failing to determine whether Viktor had qualified for the extraordinary-circumstances exception to the one-year time bar. The BIA affirmed the IJ's decision without opinion on November 18, 2002. The Sagaydaks filed their timely petition for review on December 16, 2002.³

II.

Viktor contends that the IJ erred by not determining whether Viktor's failure to meet the one-year time bar was attributable to exceptional circumstances. We agree.

A.

We first consider whether we have jurisdiction to review this challenge to the IJ's ruling.⁴ Normally, this court cannot consider a petitioner's claim that exceptional circumstances should excuse his late filing. See Hakeem, 273 F.3d at 815. This is true because, under 8 U.S.C. § 1158(a)(3), we lack "jurisdiction to review any determination of the Attorney General under paragraph (2) [of 8 U.S.C. § 1158(a)]." Paragraph (2) of § 1158(a) contains two separate provisions: the one-year filing deadline contained in subparagraph (B),⁵ and the extraordinary-circumstances exception to the one-year filing deadline contained in subparagraph (D).⁶ Thus, we cannot review the IJ or BIA's determination that an alien failed to apply within one year of arriving in the United States or a determination that the delay in filing was not caused by extraordinary circumstances.

But what if, as occurred in Viktor's case, an IJ makes no determination, even though the issue was raised by the petitioner? Although the IJ made a determination that Viktor had applied more than one year after arriving in the United States, the IJ did not consider, much less determine, whether Viktor's failure to meet the one-year time bar was caused by extraordinary circumstances. The IJ's only statement with respect to Viktor's asylum application was that "[t]he Court finds that the male respondent is ineligible for asylum since he arrived in the United States on September 17, 1997, and did not apply for asylum until November 18, 1998, more than one year after his arrival. Section 208(a)(2)(B); 8 C.F.R. 208.4(a)(2)." Both the IJ's words and his citations refer specifically to the one-year time bar; they do not address the extraordinary-circumstances exception.

Had the IJ merely erred in making a determination under subparagraph (D), we would lack jurisdiction. 8 U.S.C. § 1158(a)(3). Here, however, the IJ's error was that he did not make "any determination" at all. The jurisdiction-stripping provision contained in § 1158(a)(3) only precludes us from reviewing "any determination" with respect to the extraordinary-circumstances exception. In light of the fact that the IJ failed to make "any determination," even though the extraordinary-circumstances issue was raised by Viktor's attorney, we conclude that § 1158(a)(3) does not apply in this case. Quite simply, we are not reviewing a "determination," but the failure to make a determination. Thus, we hold that when, as occurred here, a petitioner alleges that his failure to file a timely asylum...