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Kanivets v. Gonzales

September 7, 2005

OLEG KANIVETS, PETITIONER IN 03-3569/4187
v.
ALBERTO GONZALES, ATTORNEY GENERAL OF THE UNITED STATES RESPONDENT IN 03-3569/4187
OLEG KANIVETS APPELLEE IN 04-3164
v.
BILL RILEY, AS REGIONAL DIRECTOR IMMIGRATION AND CUSTOMS ENFORCEMENT DEPARTMENT OF HOMELAND SECURITY, OR HIS SUCCESSOR OR ASSIGNS; JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES APPELLANT IN 04-3164



ON PETITIONS FOR REVIEW FROM ORDERS OF THE BOARD OF IMMIGRATION APPEALS DATED JULY 31, 2003 and OCTOBER 15, 2003 (BIA No. A77-554-283). INITIALLY DOCKETED AS AN APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA PRIOR TO THE ENACTMENT OF THE REAL ID ACT OF 2006 (D.C. No. 03-cv-05377) District Judge: Honorable Marvin Katz.

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

PRECEDENTIAL

Argued July 15, 2005

Before: SLOVITER, McKEE and WEIS, Circuit Judges.

OPINION

In this case the Board of Immigration Appeals denied a timely filed motion for rehearing on the ground that it was not decided until after the period for voluntary departure had elapsed. We conclude that the time allotted for departure is tolled pending a ruling on the motion and accordingly grant the petition for review.

Oleg Kanivets is a Russian Jew who is a citizen of Kyrgyzstan. He entered the United States on January 21, 1998 and was authorized to stay until January 20, 1999. He filed for asylum on August 2, 1999.

Kanivets contends that he suffered persecution in Kyrgyzstan based on his religion. He describes a pattern of threats and assaults that were ignored by the local police. In April 1997, Kanivets was assaulted by four Kyrgyz men who uttered an ethnic slur and threatened to kill him if he did not leave the country. He reported the assault to the police, but they told him that it was too minor an incident to investigate and advised him to leave for Israel if he was dissatisfied.

Kanivets alleged that the same four men assaulted him several months later and questioned why he had not gone to Israel. He suffered a concussion and was hospitalized for 20 days. Following that assault, Kanivets received several threatening phone calls from unidentified callers. His mother had previously received threatening notes after his sister moved to Israel in February 1997.

Kanivets testified that his supervisor and co-workers at the dental clinic where he worked harassed and threatened him. Discharged in May 1997, he alleged that he was denied further employment in Kyrgyzstan. Kanivets asserted that his family's apartment was ransacked after he departed for the United States. His mother reported the incident to the police, but they failed to investigate it. She entered the United States in April 1999.

The IJ denied Kanivets' application for asylum and withholding of removal, but granted a sixty-day period for voluntary departure. Holding that the application for asylum was untimely, the IJ's decision emphasized the lack of evidence to bolster Kanivets' claim of persecution. Based on this weakness in the petitioner's case, the IJ determined that Kanivets had failed to establish (1) that he qualified as a refugee, (2) that he was entitled to withholding of removal and (3) that he faced a clear probability of torture if he returned to Kyrgyzstan.

According to the IJ, "[t]he objective evidence in this case fails to show that Jewish people in Kyrgyzstan suffer persecution either at the hands of the government of that country, or by groups that the government of that country is unable or unwilling to control." He noted that Jews have been emigrating from Kyrgyzstan in steady numbers, but attributed this to "animosity of the Kyrgyz against the Russian-speaking community, which includes most Jews."

In contrast to the lack of objective evidence of antiSemitism, the IJ noted that:

"Clearly, there had been instances of societal violence against those perceived as being "Russian" by the natives of Kyrgyzstan....The problem of Russians who remain in the former Soviet republics is well-known. . . . [Kanivets] went from being part of a favored minority that controlled the country, namely, the Russians, to being part of a despised minority. The long pent-up resentment of the natives of Kyrgyzstan has taken its toll in the country. But there is no objective basis for the respondent's subjective claim that he has been the victim of persecution in Kyrgyzstan because of his Jewish ethnicity. The problem, if any, arose from the fact that he was perceived to be part of the ...


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