Tuesday, August 26, 2008
Court Declines to Decide Whether Soviet-Era Ukraine a ‘Country’
By STEVEN M. ELLIS, Staff Writer
A panel of the Ninth U.S. Circuit Court of Appeals yesterday declined to consider whether the Ukraine was a “country” prior to the 1991 breakup of the Soviet Union to which a man who immigrated to the United States on a Soviet passport must now be removed.
The court held in a per curiam opinion by Judges Kim McLane Wardlaw, Richard R. Clifton and N. Randy Smith that the Board of Immigration Appeals must first determine whether pre-independence Ukraine qualifies under U.S. immigration law as the “country” from which Nikolay Alexandrovich Dzyuba entered the United States before it can order him removed there.
Born in Georgia, Dzyuba moved with his family to the Ukraine in 1972, when both nations were still constituent or “union” republics of the U.S.S.R. He left the Ukraine to emigrate to the United States in July of 1991 after suffering what he said was persecution due to his Pentecostal religion.
The Soviet Union collapsed in December of that year, and its constituent republics became sovereign states.
Dzyuba was granted legal permanent resident status two years after his entry into the United States as a refugee, but when he applied for naturalization in 2002, a Department of Homeland Security officer arrested him on the basis that an aggravated felony conviction and a domestic violence conviction after Dzyuba’s entry made him removable.
Conceding removability, Dzyuba applied for withholding of removal and protection under the United Nations Convention Against Torture, but the BIA—erroneously finding that Dzyuba entered the country on a Ukrainian passport—determined that he should be removed to the Ukraine under 8 U.S.C. § 1231(b)(2)(E)(i), which permits the Attorney General to remove an alien to “[t]he country from which the alien was admitted to the United States.”
On appeal, the panel vacated the removal order, writing that the BIA’s erroneous finding caused it to “[fail] to address the novel legal question Dzyuba’s petition actually presents.”
Pointing out that the term “country” has “multiple ordinary definitions, alternatively denoting an independent political entity or merely a geographic region without reference to political sovereignty,” the judges wrote that the BIA needed to address whether the term, as used in the Immigration and Nationalization Act, “requires an independent political entity or encompasses a non-sovereign region within another sovereign.”
The case is Dzyuba v. Mukasey, 06-74372.
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