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Ilchuk v. Attorney General of the United States of America

January 17, 2006

RUSLAN I. ILCHUK, PETITIONER
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, RESPONDENT



ON PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS (No. A71 248 856).

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

PRECEDENTIAL

Argued September 30, 2005

Before: ALITO and AMBRO, Circuit Judges, and RESTANI,*fn1 Judge.

OPINION OF THE COURT

Ruslan Ivanovich Ilchuk ("Petitioner") challenges the decision of the Department of Homeland Security ("DHS") Board of Immigration Appeals ("BIA") upholding the determination of the Immigration Judge ("IJ") that Petitioner is subject to removal from the United States, but reversing the IJ's grant of withholding of removal. We conclude that the BIA did not err in holding Petitioner removable under 8 U.S.C. § 1227(a)(2)(A)(iii) (2000) (commission of an aggravated felony, i.e., a theft crime) but did err in reversing the IJ. Petition is remanded.

FACTS

Petitioner entered the United States in April 1994 at the age of fifteen*fn2 as a refugee. His status was adjusted to that of legal resident on April 19, 1995.

Petitioner was a member of a Pentecostal Church in the Ukraine and, at the time of his January 13, 2004 administrative hearing, was also a member of a Pentecostal Church in the United States. According to the U.S. Department of State International Religious Freedom Report 2002, Orthodox Christianity is the majority religion in the Ukraine and non-native religions (including the Pentecostal Church) are de jure limited, but de facto governmental restrictions were not reported.

Petitioner and other family members testified as to educational and work difficulties encountered in the Ukraine by Pentecostals prior to their immigration to the United States in 1994. Petitioner also testified that an uncle suffered persecution in the Soviet army in the 1980's because of his religious commitments against bearing arms and swearing oaths. The BIA concluded, however, that respect for religious rights has been improving under the post-Communist presidential/parliamentary government established in 1991. While the BIA did note brutal treatment of fellow soldiers by their peers (even leading to death), it found no evidence that such treatment was on account of religious beliefs. It also found that discrimination by the government in granting conscientious objector status to members of certain religions, but not Pentecostals, did not amount to persecution under the appropriate legal standard. Accordingly, it concluded Petitioner's eligibility for military conscription until the age of 28 did not qualify him for withholding of removal.

Petitioner's immigration difficulties began with a criminal conviction in April 2001. He was an ambulance driver who on February 11 and 13, 2000, was dispatched to emergent incidents. The dispatch calls, however, had been diverted from the legally designated emergency service provider to Petitioner's employer. Petitioner was convicted of theft of services, 18 Pennsylvania Consolidated Statutes Annotated ("Pa. C.S.A.") § 3926(b) (West 1983); three counts of reckless endangerment, 18 Pa. C.S.A. § 2705 (West 2000); and one count of criminal conspiracy, 18 Pa. C.S.A. §§ 903 and 3926(b) (West 1998). Petitioner was sentenced to six to twenty-three months of house arrest with electronic monitoring.

The BIA found Petitioner subject to removal under three different statutory provisions: 8 U.S.C. § 1227 (a)(2)(A)(iii), conviction of an aggravated felony (a theft offense with an imprisonment term of one year or more); 8 U.S.C. § 1227(a)(2)(A)(i), conviction of a crime of moral turpitude within five years of admission; and 8 U.S.C. § 1227(a)(2)(A)(ii), conviction of two or more crimes of moral turpitude.

Because withholding based on asylum is not available to one found removable based on an aggravated felony (see 8 U.S.C. § 1158(b)(2)(A)(ii) (2000) (asylum not available to one convicted of a particularly serious crime); 8 U.S.C. § 1158(b)(2)(B)(i) (aggravated felony is a particularly serious crime)), the BIA addressed Petitioner's claims for withholding of removal under 8 ...


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