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Korythyuk v. Ashcroft

January 25, 2005


On petition for review of a final order of the Board of Immigration Appeals File No. A73 174 928

Before: Rendell, Fuentes And Smith, Circuit Judges

The opinion of the court was delivered by: Smith, Circuit Judge


Argued September 27, 2004


This immigration case presents two questions of law: (1) whether we have jurisdiction over certain discretionary denials by the Bureau of Immigration Appeals of motions to remand under the transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, and (2) the appropriate standard of review for questions of fact where the Bureau of Immigration Appeals ("BIA" or "Board") denies a motion to remand in an exercise of its discretionary authority. We conclude that we have jurisdiction over the type of denial the BIA exercised in this case, and that the appropriate standard of review for the fact cited in that denial is substantial evidence. Because the immigration judge lacked substantial evidence for his factual finding that Petitioner participated in criminal activities in the Ukraine, a finding on which the BIA solely rested its denial of Petitioner's motion to remand, we will vacate the BIA's denial as an abuse of discretion and remand this case for further explanation and development of the record.



Mykhaylo Korytnyuk is a native and citizen of the Ukraine who came to the United States on June 8, 1993 on a visitor's visa. Korytnyuk overstayed that visa, and on May 15, 1996, the Immigration and Naturalization Service (INS)*fn1 commenced deportation proceedings against him. At a hearing before an immigration judge, Korytnyuk through counsel admitted that he had overstayed his visa and was held to be deportable, but requested asylum and withholding of deportation. On January 16, 1998, an immigration judge held a hearing on Korytnyuk's application for asylum and withholding of deportation, denied both requests for relief, and required a final order of deportation to be entered against Korytnyuk. Korytnyuk appealed to the BIA the denial of his application for asylum and withholding of deportation ("direct appeal").

While his direct appeal was pending, Korytnyuk received an approved immigrant petition for alien worker.*fn2 With that approval in hand, Korytnyuk filed a motion to remand to the immigration judge ("IJ") so he could apply for adjustment of status to that of a lawful permanent resident. In February 2003, in a one-page decision, the BIA "dismissed" Korytnyuk's direct appeal and denied his motion to remand. In response, Korytnyuk timely petitioned this Court for review of the BIA's denial of his motion to remand. Soon thereafter, Korytnyuk filed with the BIA a motion to reopen his claim and a motion to reconsider its denial of his motion to remand. In November 2003, the BIA at once denied both of these motions. Korytnyuk filed a timely petition seeking review of that denial.

On petition to this Court, Korytnyuk does not seek review of the BIA's denial of his direct appeal. Instead of asylum in the United States, he seeks an adjustment of his status. Specifically, he petitions for review of the BIA's denials of his motions (1) to remand and (2) to reopen or reconsider insofar as they pertain to his efforts to apply for adjustment of status.*fn3 Our focus narrows further still, however, as, stripped of his direct appeal, Korytnyuk's motions to reopen and reconsider do little more than restate his motion to remand; and the BIA's denial of his motions to reopen and reconsider simply refers back to its rationale for denying his motion to remand. Thus, we are left essentially with the BIA's denial of Korytnyuk's motion to remand.


Our factual focus is on the IJ's determination that Korytnyuk, in the words of the BIA, "participated in criminal activities," as that finding is the sole basis on which the BIA denied Korytnyuk's motion to remand. We examine here the proceedings conducted by the IJ, his oral decision, and his written "Oral Decision and Order" ("Decision").

1. Deportation Hearing

Korytnyuk testified that he was born in Rivno, Ukraine.*fn4 He joined the military as soon as he left high school and served near the Afghanistan border in an elite paratrooper unit. After he finished his military tour, Korytnyuk worked as a fire truck driver at a government chemical company in Rovno, Ukraine.*fn5 In 1992, Korytnyuk joined the druzhinnik, a division of the local police force, called the Berkut.*fn6 In the druzhinnik, Korytnyuk was trained in police work, protecting small businesses, and the druzhinnik 's major responsibility, to provide security for "critical situations" in the area. Korytnyuk testified that, as an example of a "critical situation," the druzhinnik secured unsafe portions of the town. Each member of the force wore a uniform

explained it to him. He doesn't—he, he thinks he's going to—he doesn't want to do it because he's not going to—he's not going to trust me. during normal working hours.

Korytnyuk testified that the druzhinnik performed emergency assignments after working hours. At first, he believed they were being called to investigate suspicious people causing problems in the area, but later it became clear that these persons were suspicious simply because they were Ukrainian nationalists who had been informed upon by members of the former Communist party.*fn7

Korytnyuk testified that during these after-work assignments, the rest of the team would enter a house and lock the door behind them. He "felt something unusual was going on there." He began to get "news such as people get beaten. They kill people. They get, they get dead, either in their house or in, in the hospitals." Korytnyuk stated that on orders from the group commander he always acted as a lookout and remained outside. When asked whether he ever was a witness to any beatings, Korytnyuk responded, "I was not. They would execute in the inside and they'd be inside, yes. In sometimes, I had learned that those people had died in the houses or the hospitals."

Korytnyuk testified that he learned of the beatings and killings from family members of those who had been harmed by the druzhinnik, and at first he did not believe their reports. Once he began to ask questions and speak out against the after-work assignments, he no longer received such assignments. He left the druzhinnik in October 1992, after roughly six months of involvement.

In November 1992, members of the druzhinnik warned Korytnyuk that he would be killed if he did not return to the force. His assignments changed at his job as a fire truck driver, and he began to be punished. He testified that he was severely beaten by five or six members of the druzhinnik, incurring an arm injury and bruises all over his body, and was hospitalized. When he returned to work, he was beaten several more times before he eventually left the town. Most notably, in February 1993, a group of druzhinnik officers broke into a friend's apartment where Korytnyuk was staying, destroyed property, and beat him and his friend. The beating cracked Korytnyuk's ribs, and he was taken to the hospital.

Korytnyuk submitted at least one medical report to buttress his claim that he had been beaten. The IJ noted at the opening of the hearing that one medical report was in the record. In response, Korytnyuk's counsel asked whether two medical reports were in the record. The IJ responded, "Well, so what's the problem? Because I've already told you that I've marked Exhibit 3-F [a single medical report] into the record of evidence. So what's the problem?" Korytnyuk's counsel asked, "Are those the medical records, Your Honor? I'm sorry, I made a mistake." The IJ responded, "Yes, I told you it's from a hospital." Later in the hearing, Korytnyuk's counsel returned to the subject: "The medical reports were already admitted without objection, correct[?]" The IJ responded, "[t]hat's correct. For the third time, it's correct, Mr. Otero!" Korytnyuk's counsel explained he understood. The IJ replied: "Are you here today... or not here today?... You questioned me. I told you at the beginning it was in the record of evidence. Then you asked me, is it in the record of evidence? Then I told you it is in the record of evidence. Let the record show now for the third time, I'm telling you that that medical report is in the evidence. Do you understand that?"

Korytnyuk testified that he reported his final beating to the police, but nothing was done. Before the beating, members of the druzhinnik had warned Korytnyuk that they were not "kidding with [him] anymore," but were ready to kill him. After the beating, Korytnyuk fled Rovno and hid elsewhere in Ukraine, but he did not feel safe within the country because Berkut was a national organization. Soon thereafter, Korytnyuk paid "big, big money" for a passport to leave the Ukraine.

On cross examination, government counsel questioned Korytnyuk about his emergency assignments with the druzhinnik. Korytnyuk affirmed that on such assignments those who went into houses wore ski masks, but he did not because he "was away in [his] vehicle." He acknowledged that he saw people come out of their houses beaten.

Counsel for the government asked Korytnyuk if he remembered telling an INS asylum officer that he had gone on 10 or 12 missions for the druzhinnik.*fn8 Korytnyuk responded that he did remember making that statement. Counsel then asked Korytnyuk whether he told the asylum officer that on "one of the missions in August, you actually put on a ski mask and participated in the beating of a businessman." After an unsuccessful hearsay objection to that question, the following colloquy, interrupted by the IJ, took place between Korytnyuk and government counsel:

Korytnyuk: I think it was a mistake of my translator. He was not translating or interpreting correctly. I could not have said that no way.

Counsel: And that you didn't go into this building with five others and beat this businessman to the point that he had to go to the hospital?

Korytnyuk: I did not.

Counsel: And that, and that afterwards, that after he went to the hospital, he would die. Isn't that correct, from the beating.

Korytnyuk: That's correct. Many people had died in the hospital.

IJ: That's a very clever answer you gave, sir, and I want the record to show that's a very sophisticated answer because it avoids answering the question! The question is, did you say that to the Immigration Service office? Yes or no?

Korytnyuk: Yes.

IJ: You realize what you just said, sir?

Korytnyuk: I do.

IJ: Because you have denied that these were said. It was all the interpreter's fault. Now you said yes, you did tell the Immigration officer that you were present w hen pe ople wer e beaten—when this man was beaten and taken to the hospital. You did tell that to the Immigration officer. Is that correct, sir?

Korytnyuk: I did.

IJ: Continue, please.

Counsel: And that you also told the Immigration officer that you had participated three other ...

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