The opinion
Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
1-25-2005
Korytnyuk v. Atty Gen USA
Precedential or Non-Precedential: Precedential
Docket No. 03-1537
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PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Case No: 03-1537
MYKHAILO STEPANOVICH KORYTNYUK,
Petitioner
v.
JOHN ASHCROFT, Attorney General
of the United States;
U.S. DEPARTMENT OF JUSTICE
IMMIGRATION AND NATURALIZATION
SERVICE,
Respondents
Case No: 03-4677
MYKHAILO STEPANOVICH KORYTNYUK,
Petitioner
v.
JOHN ASHCROFT, Attorney General of
the United States,
Respondent
_______________
On petition for review of a final order
of the Board of Immigration Appeals
File No. A73 174 928
_______________
Argued September 27, 2004
_______________
Before: RENDELL, FUENTES AND SMITH, Circuit Judges
(Filed: January 25, 2005)
__________________
OPINION OF THE COURT
__________________
Counsel: Lawrence H. Rudnick, Esq. (Argued)
Steel, Rudnick & Ruben
1608 Walnut Street, Ste. 1500
Philadelphia, PA 19103
Attorney for Petitioner
Peter D. Keisler, Assistant Attorney General, Civil
Division
David V. Bernal, Assistant Director
Barry J. Pettinato (Argued), Senior Litigation
Counsel
U.S. Department of Justice
Office of Immigration Litigation
P.O. Box 878, Ben Franklin Station
2
Washington, DC 20044
Attorneys for Respondent
______________________
SMITH, Circuit Judge.
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.
3
I.
A.
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) 1
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. 2 With that
1
The INS is now the Bureau of Citizenship and Immigration
Services within the Department of Homeland Security. 6 U.S.C.
§ 271 (2004). Because the INS was still in existence at the time
of Korytnyuk’s deportation proceedings, this opinion utilizes the
term INS.
2
Under § 203(b)(3)(A)(i), (ii) of the Immigration and
Nationality Act, a number of visas are set aside for aliens who
4
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.3 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
qualify as “skilled” and “professional workers.” 8 U.S.C. §
1153(b)(3)(A)(i), (ii).
3
At Korytnyuk’s request, we have consolidated our review of
his petitions for review of each of these denials.
5
essentially with the BIA’s denial of Korytnyuk’s motion to
remand.
B.
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.4
4
The deportation hearing began ominously. When Korytnyuk
took the stand, the IJ stated that he would “be showing to the
respondent Exhibit 3-A, his asylum application and I will have
him sign it. Sir, showing to you [sic] what is supposed to be
your asylum application.” Korytnyuk affirmed upon the IJ’s
questioning that the document bore his signature.
The IJ then inquired, “Do you know what this application
says?” Korytnyuk replied “I do not,” to which the IJ responded:
“Well, that’s your fault, sir. You were told to be prepared for
today’s hearing. We’re not here simply to have a conference sir.
We’re here to decide your asylum application. You were
supposed to prepare for that purpose.” The IJ continued: “Now,
this is the asylum application that you gave to the Immigration
Service in 1993. Do you know what it says? Yes or no?”
Korytnyuk responded, “I know that.” He then affirmed
6
everything in the application. The IJ stated that they would go
off the record so Korytnyuk again could sign the application.
As soon as the proceedings went back on the record, the
IJ exclaimed:
No! Five minutes before. We’re 15 minutes
late getting started here today. He’s supposed to be
prepared. [To Korytnyuk] Do you wish to sign this
asylum application, sir? Yes or no? All right. I
don’t want any more problems here with you, sir,
over preliminaries or I’m going to make it very clear
to you, sir, you will be back here every single day!
You’re supposed to be prepared today! The
taxpayers are paying for you to have a hearing. All
right. [To the interpreter] Let me have the thing
back. [To Korytnyuk] No, there’s nothing for you to
say, sir! [To Korytnyuk’s counsel] And I’m standing
here for 45 minutes while he tells me he doesn’t
know any of these documents. He’s supposed to be
prepared for today’s hearing. If he’s not prepared,
this is my policy from now on. Somebody comes in
here, is not prepared the day of the hearing, I’m
dismissing the application for lack of prosecution.
I’m going to order him deported and I’m going to ask
the Service to take him into custody, and then you’ll
make a motion to reopen and see to it that he’s
prepared. He’s supposed to know what these
documents are all about. He’s supposed to have seen
them. He[’s] supposed to have gone over them. I
7
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.5
In 1992, Korytnyuk joined the druzhinnik, a division of the local
police force, called the Berkut.6 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.
5
Korytnyuk refers to “Rovno” as the town where he worked
when he left the military, and “Rivno” as the town where he was
born.
6
Korytnyuk’s job afforded him three days off each week. He
explained that he had been playing sports on those days off, but
was being criticized by those around him for not doing enough
with his free time. At that point, the IJ interrupted Korytnyuk,
directing the following comment to Korytnyuk’s counsel: “You
might want to ask him a question, Mr. Otero, because he’s just
talking, but he’s not saying anything of relevance here.”
Korytnyuk’s counsel explained that he would allow Korytnyuk
to finish, at which point Korytnyuk explained that he found a job
as “security for local police or militia.”
8
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. 7
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
7
The Ukraine declared its independence from the Soviet
Union in August 1991, a declaration ratified by popular
referendum on December 1, 1991.
9
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
10
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
11
10 or 12 missions for the druzhinnik.8 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.
8
The record contains no documents related to, or
memorialization of, this interview.
12
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 when people were
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 times in beating other people?
13
Korytnyuk: I did say that.
When cross examination ended, the IJ asked Korytnyuk
if he had been charged with a crime, and if so what crime. After
stating that he had not committed any crimes, Korytnyuk
acknowledged that he had been charged with violating “all
Ukrainian’s laws.” The IJ again questioned Korytnyuk about
the nature of the charge against him. Korytnyuk answered
“[a]gainst Ukraine and I had, I had done like a propaganda
politics against Ukraine and they try accuse me for what I was
working there, literally.” Apparently unsatisfied with this
response, the IJ responded:
Well, sir, let me tell you what I think they accused you of
since you don’t want to tell us. You were an enforcer,
sir, for the mafia in Ukraine. That’s why you were there
when they were beating up businessmen and I wouldn’t
doubt that some of these enforcers were also in this
police force and that’s why they went out and did these
things without a uniform. And then after a while, the
police found out that you were involved as an enforcer
for the mafia, sir. The honest police, not the corrupt ones
that were doing this kind of work also and they charged
you, sir, with assaulting people, with beating people up,
maybe even with having been responsible for the death
of people. Is that what you were charged with, sir?
When Korytnyuk answered in the negative, the Judge responded
that there was no way to know what he was charged with
because Korytnyuk had left the Ukraine. The IJ explained that
14
“it appears to me, sir, the reason why you left Ukraine was to
avoid such a trial.” Korytnyuk denied that assertion.
2. Explanation of “Oral Decision and Order”
After a recess, the IJ explained his forthcoming “Oral
Decision and Order.” He stated that he did not believe
Korytnyuk’s testimony, particularly regarding his “problem”
with the druzhinnik. The IJ noted that the State Department’s
Country Reports on Human Rights Practices for 1992 did not
mention that police organizations in the Ukraine committed the
kind of crimes that Korytnyuk alleged the druzhinnik committed.
The IJ explained that
the evidence in my mind shows clearly that what
happened here is that these so-called assignments that
you went on were not authorized by the police in
Ukraine. They were undertaking to extort money
from innocent victims. They were crimes, and in my
judgement [sic], sir, the reason why you were charged
with a crime in Ukraine before you left that country
was because the honest police in that country became
aware of what was going on. . . . The fact that
somebody doesn’t want to go back to a country
because they may be prosecuted for a crime there,
does not entitle them to asylum.
The IJ stated that he had “other reports in here showing that
Ukraine has taken tremendous strides in developing a
democracy, sir.” In light of Korytnyuk’s “clearly . . . false
15
testimony,” the IJ said he had denied Korytnyuk’s request for
voluntary departure and ordered him deported, explaining that
“[t]his country cannot be allowed to become a haven, sir, for
people who don’t want to go to trial in their own country . . . .”
The IJ added that he believed that Korytnyuk changed his story
concerning his participation in the druzhinnik’s alleged beatings,
first denying that participation until confronted with his former
testimony to an INS asylum officer.
3. “Oral Decision and Order”
That same day, the IJ issued a written “Oral Decision and
Order.” The IJ stated that he had “no confidence in the veracity
of the testimony offered by [Korytnyuk]” and explained that
“[t]here is a ‘smoking gun’ to show that the respondent’s
testimony has been false.” That smoking gun, according to the
IJ, was the fact that the State Department’s 1992 country
conditions report reported “no political or other extra-judicial
killing in Ukraine by the police or any other organization in that
country during the year 1992.” Further, the IJ stated that
there are no reports that police organizations called
druzhinnik or any other name were responsible for the
kind of crimes that the respondent alleged occurred in
1992. This stark contrast between the respondent’s
testimony in Immigration Court under oath and the
objective evidence regarding conditions in Ukraine is the
prime factor indicating that this testimony is not
reasonably worthy of belief. There is no plausible
context for the claim made by respondent.
16
Next, the IJ stated that Korytnyuk contradicted himself
during his testimony, first saying he was only a lookout, then
stating that he knew what the druzhinnik was “doing to its
victims.” Additionally, according to the IJ, Korytnyuk’s hearing
testimony contradicted his earlier statement to an INS asylum
officer that he had participated in beatings conducted by the
druzhinnik. The IJ reasoned that Korytnyuk’s
attempt to make it appear that druzhinnik was acting
under communist instructions to suppress Ukrainian
nationalists is totally absurd. After August 1991,
persons who espoused Ukrainian nationalism were
free to state their views and participate in an
independent government. The actions taken by
druzhinnik were against businessmen that druzhinnik
was extorting and not because of the political
opinions of the victims. The fact that the respondent
attempted to obscure this basic truth is another
indication of the unreliability of his testimony.
The IJ found it “absurd” that Korytnyuk would have no personal
knowledge of the druzhinnik’s crimes, and yet have so much
information that the druzhinnik later tried to keep him from
disclosing it.
Last, the IJ rejected Korytnyuk’s claims that he did not
know what he had been charged with in the Ukraine, and that he
only learned of the charge after coming to the United States.
The IJ determined that Korytnyuk was “aware before he
departed from Ukraine that he had been charged with a crime,”
17
but that Korytnyuk was hiding the true nature of the charge.
Moreover, the IJ concluded that “[t]he idea that [Korytnyuk]
would have been charged with making ‘propaganda’ against the
independent Ukrainian state strains credulity to the uttermost.”
The IJ concluded that the druzhinnik did not suppress Ukrainian
nationalists, but instead extorted businessmen, such as a man
who owned a news stand, whom Korytnyuk mentioned in an
affidavit. “Plainly put,” the IJ continued, “[Korytnyuk] was an
‘enforcer’ for organized crime elements that sought to victimize
individuals who had tried to establish independent businesses in
non-communist Ukraine.” “Rather than face trial” for his
offenses, the IJ concluded, Korytnyuk “took the opportunity to
come to the United States” to avoid prosecution. The BIA
adopted the IJ’s finding that Korytnyuk, in the words of the
BIA, “participated in criminal activities,” and on that ground
denied his motion to remand. We review that denial now.
II.
The parties agree that this Court has jurisdiction over this
case. Parties may not confer subject matter jurisdiction by
agreement, however, and at first blush the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (IIRIRA),
Pub. L. No. 104-208, Div. C, 110 Stat. 3009-546, raises
questions concerning our jurisdiction over Korytnyuk’s appeal.
It “is axiomatic that this court has a special obligation to satisfy
itself of its own jurisdiction,” Urena-Tavarez v. Ashcroft, 367
F.3d 154, 157 (3d Cir. 2004) (quoting United States v. Touby,
909 F.2d 759, 763 (3d Cir. 1990)), and so we begin by
18
considering whether the IIRIRA precludes our review of this
dispute.
This case is governed by the transitional rules of the
IIRIRA,9 which generally provide judicial review of “final
9
Section 309(c)(1) of the IIRIRA provides:
Subject to the succeeding provisions of this subsection,
in the case of an alien who is in exclusion or deportation
proceedings before the title III-A effective date [April 1,
1997]--
(A) the amendments made by this subtitle shall
not apply, and
(B) the proceedings (including judicial review
thereof) shall continue to be conducted without
regard to such amendments.
IIRIRA § 309(c)(1) (cited in Stewart v. INS, 181 F.3d 587, 592-
93 n.4 (4th Cir. 1999)).
Section 309(c)(4) of the IIRIRA provides: “[i]n the case
in which a final order of exclusion or deportation is entered
more than 30 days after the date of the enactment of this act
[September 30, 1996], notwithstanding any provision of section
106 of the Immigration and Nationality Act to the contrary[, the
transitional rules apply.].” IIRIRA § 309(c)(4) (cited in Stewart,
181 F.3d at 593 n.4).
As Korytnyuk’s deportation proceedings began on May
15, 1996 (before the title III-A effective date of April 1, 1997),
and the final order of deportation was entered on January 27,
2003 (more than 30 days after enactment of the IIRIRA on
19
order[s] of exclusion or deportation.” See IIRIRA Sec.
309(c)(1), (4) (codified at note to 8 U.S.C. § 1101 (2004)).
Along with several sister circuits, we consider “final orders of
deportation” to include a BIA order denying a motion to reopen.
See Sevoian v. Ashcroft, 290 F.3d 166, 169 (3d Cir. 2002)
(citing Khourassany v. INS, 208 F.3d 1096, 1100 (9th Cir.
2000)). 10 As we explain below, see Sec. III, we treat
Korytnyuk’s motion to remand as a motion to reopen. Thus, if
we have jurisdiction, we would consider the BIA’s denial of his
motion to remand as a final order of deportation.
The transitional rules that govern this case contain
jurisdiction limiting provisions, however. As we have noted in
an earlier decision, the theme of the IIRIRA can fairly be said to
be “protecting the Executive’s discretion from the courts.”
Urena-Tavarez, 367 F.3d at 158 (quoting Reno v. Am.-Arab
Anti-Discrimination Comm., 525 U.S. 471, 486-87 (1999)).
Among the jurisdiction limiting provisions of the transitional
rules, § 309(c)(4)(E) provides that “there shall be no appeal of
any discretionary decision under section 212(c), 212(h), 212(I),
244, or 245 of the Immigration and Nationality Act [sections
1182(c), 1182(h), 1182(I), 1254, or 1255 of this title] [“INA”]
September 30, 1996), the transitional rules apply to his appeal.
10
See also Stewart, 181 F.3d at 593, citing, inter alia, Sarmadi
v. INS, 121 F.3d 1319, 1321 (9th Cir. 1997), Chow v. INS, 1113
F.3d 659, 664 (7th Cir. 1997) (same); Kalaw v. INS, 133 F.3d
1147, 1150 n.4 (9th Cir. 1997).
20
(as in effect as of the date of the enactment of this Act).”
IIRIRA § 309(c)(4)(E).
The immediate question for this Court, therefore, is
whether the BIA’s denial of Korytnyuk’s motion to remand was
a discretionary decision under one of the enumerated provisions
of transitional rule § 309(c)(4)(E). We conclude that it was not.
In its entirety, the BIA’s denial of Korytnyuk’s motion to
remand reads as follows:
The respondent appeals from the [IJ’s] denial of his
applications for asylum and withholding of deportation.
The respondent has also filed a motion to remand this
matter so that he may apply for adjustment of status
under section 245(a) of the [INA] as the beneficiary of an
approved employment-based visa petition. The appeal
will be dismissed, and the motion to remand will be
denied.
....
The [INS] has opposed the respondent’s motion to
remand. We agree that a remand for adjustment of status
is not warranted as a matter of discretion in light of the
determination that the respondent participated in criminal
activities while a member of the special police unit,
which was called the druzhinnik, for which he worked
for six months in 1992 (I.J. at 16-19; Tr. at 65-68).
Accordingly, the motion to remand will be denied. 8
C.F.R. § 3.2(c)(1), (4).
21
As a preliminary matter, we note that the denial does not
purport to be a decision under § 245 or any other enumerated
provision of § 309(c)(4)(E). The denial states that Korytnyuk
filed a motion to remand “so that he may apply for adjustment
of status” and concludes that “remand for adjustment of status”
was not warranted. By its terms, the denial apparently precedes
and is separate from an adjustment of status.
More importantly, the denial expressly relies on 8 C.F.R.
§ 3.2(c)(1), (4), not any of the enumerated provisions of §
309(c)(4)(E). There is no statutory basis for motions to remand
under 8 C.F.R. § 3.2(c); the authority for such motions derives
solely from the regulation, which is promulgated by the Attorney
General. See INS v. Doherty, 502 U.S. 314, 321 (1992). 11 That
regulation is not an enumerated provision in § 309(c)(4)(E) of
the transitional rules. Thus, the decision of the BIA we are
asked to review is not a judgment on whether to adjust
Korytnyuk’s status under § 245(a) of the INA, which would be
a discretionary decision under an enumerated provision in §
309(c)(4)(E), but is rather a discretionary decision under a
regulation not listed in, or derived from, any of the enumerated
provisions in § 309(c)(4)(E). Therefore, we conclude that we
have jurisdiction over this appeal under the transitional rules.
Cf. Luis v. INS, 196 F.3d 36, 40 (1st Cir. 1999) (“This was a
decision under 8 C.F.R. § 3.2(a), not one of those sections
11
8 C.F.R. § 3.2 is now codified at 8 C.F.R. § 1003.2.
22
enumerated in IIRIRA § 309(c)(4)(E) . . . .”).12
12
This conclusion accords with the Fourth Circuit’s
consideration of essentially the same issue in Stewart. That case
held that § 309(c)(4)(E) “divests courts of jurisdiction only over
BIA decisions that address the merits of an alien’s request for
relief pursuant to those sections” specifically enumerated
therein. 181 F.3d at 595. To divest this Court of jurisdiction,
Stewart would require that the BIA’s decision be on the merits
of Korytnyuk’s request for an adjustment of status under § 245.
Yet, in its denial the BIA mentioned none of the factors required
to find an adjustment of status under § 245 (which in September
1996 included filing an application for adjustment, eligibility for
an immigrant visa and admissibility for permanent residence,
and immediate availability of an immigrant visa at the time an
application is filed). Id. at 594. Instead, the BIA denied
Korytnyuk’s motion to remand for an adjustment of status in an
exercise of its discretion under regulations not based in statute.
Because the BIA’s decision was not a merits denial of
Korytnyuk’s § 245 application, we have jurisdiction.
The First Circuit suggests that this result raises an
important question of policy. That is, why “should review of a
decision under INA § 245 not to grant an adjustment of status be
precluded, while judicial review of the denial of a motion to
[remand] to petition for adjustment of status is permitted?”
Prado v. Reno, 198 F.3d 286, 291 (1st Cir. 1999). We agree
with the First Circuit that this “small safety valve” of court
review “ensures that the agency at least considers new
information, even if its ultimately unreviewable judgment denies
the relief sought.” Id. “The space left open for judicial review
23
III.
A.
As noted above, for purposes of jurisdiction we treat a
motion to remand as a motion to reopen. See Bhiski v. Ashcroft,
373 F.3d 363, 371 n.5 (3d Cir. 2004). We consider these
devices as equivalent for jurisdictional and standard of review
purposes because, as this case demonstrates and as the current
regulations instruct,13 motions to remand filed while an appeal
is pending before the BIA are essentially motions to reopen
denominated differently because no decision on the direct
appeal exists to be reopened. Both devices require the
proceedings to be reopened, however, and as such they are
functionally identical. See Rodriguez v. INS, 841 F.2d 865, 867
is quite narrow,” but Congress did leave the window “open a
crack,” id., and it is not the province of the courts to close it.
13
See 8 C.F.R. § 1003.2(c)(4) (2004):
A motion to reopen a decision rendered by an
Immigration Judge or Service officer that is pending
when an appeal is filed, or that is filed while an appeal is
pending before the Board, may be deemed a motion to
remand for further proceedings before the Immigration
Judge or the Service officer from whose decision the
appeal was taken. Such motion may be consolidated
with, and considered by the Board in connection with,
the appeal to the Board.
24
(9th Cir. 1987) (citing C. Gordon & G. Gordon, 8 IMMIGRATION
L AW AND P ROCEDURE § 62.08[5], at 62-39 (1987)); In re L-V-K-
, 22 I. & N. Dec. 976 (BIA 1999) (“A motion to reopen that is
filed during the pendency of an appeal may be styled as a motion
to remand. In substance, however, it remains a motion to
reopen.”) (citation omitted). 14 We thus find no reason to treat
motions to remand differently from motions to reopen for
purposes of determining whether we have jurisdiction, and
determining the appropriate standard of review.
B.
Identifying that standard of review is a more difficult
proposition, however. To be sure, the Supreme Court and
earlier panels of this Court have not left the field entirely open.
INS v. Abudu, 485 U.S. 94, 104 (1988), lays down markers that
14
Cf. Doherty, 502 U.S. at 329 (Scalia, J., concurring in the
judgment in part and dissenting in part) (“[T]he nature of the
INS regulations is such that the term ‘reopening’ also includes,
to a large extent, what is in the judicial context the much more
common phenomenon called ‘remand for further proceedings.’
Under the INS system, reopening is the sole means of raising
certain issues that acquire legal relevance . . . only by virtue of
the decision on appeal. A remand for that purpose often
requires ‘reopening’ of the original hearing, and may be
expressly denominated as such.”).
25
guide our analysis 15 :
There are at least three independent grounds on which
the BIA may deny a motion to reopen. First, it may hold
that the movant has not established a prima facie case for
the underlying substantial relief sought. The standard of
review of such a denial is not before us today, as we have
explained. Second, the BIA may hold that the movant
has not introduced previously unavailable, material
evidence, 8 C.F.R. § 3.2 (1987), or, in an asylum
application case, that the movant has not reasonably
explained his failure to apply for asylum initially. . . .
We decide today that the appropriate standard of review
of such denials is abuse-of-discretion. Third, in cases in
which the ultimate grant of relief is discretionary
(asylum, suspension of deportation, and adjustment of
status, but not withholding of deportation), the BIA may
leap ahead, as it were, over the two threshold concerns
(prima facie case and new evidence/reasonable
explanation), and simply determine that even if they were
met, the movant would not be entitled to the
discretionary grant of relief. We have consistently held
15
As noted above, we treat motions to remand as functionally
equivalent to motions to reopen. It follows that in discussion of
the appropriate standard of review of a motion to remand, we
freely use cases discussing the standard of review of a motion to
reopen. In quoting from such cases, the terms are to be
understood interchangeably.
26
that denials on this third ground are subject to an abuse-
of-discretion standard.16
Further, Abudu emphasized that determining the proper
standard of review can depend on getting the case into the right
one of the three listed categories. Each category is, as it were,
hermetically sealed from the others. This seems to us the sole
significance of the phrase “independent grounds” in the passage
quoted above, and it is the plain implication of the description
the Abudu Court gave of the Ninth Circuit’s handling of the
standard of review in that case:
[T]he Court of Appeals in this case purported to decide
‘whether [respondent] presented a prima facie case for
reopening.’ In so doing, the Court of Appeals set out a
standard for BIA motions to reopen deportation
proceedings that appears to have conflated the quite
separate issues whether the alien has presented a prima
facie case for asylum with whether the alien has
reasonably explained his failure to apply for asylum
initially and has indeed offered previously unavailable,
material evidence. To the extent that the reasoning of
the Court of Appeals addresses the issue of reopening
rather than the issue of prima facie case for asylum, it is
not supported by our cases . . . .
16
See also Sevoian, 290 F.3d at 169-70 (citing Abudu, 485
U.S. at 105) (reiterating three categories).
27
Id. at 108 (emphasis added) (citations omitted).
Our threshold task is thus clear: we must determine on
precisely what ground the BIA denied Korytnyuk’s motion to
remand. The result of that inquiry will determine the
appropriate standard of review in this case.
Before commencing that effort, we note that this Court
has filled a gap left in Abudu. As the first quotation above
shows, the Abudu Court did not decide the appropriate standard
of review of denial of a motion to reopen (or remand) where the
petitioner failed to establish “a prima facie case for the
underlying substantial relief sought.” 485 U.S. at 104. We
answered this question in Sevoian, holding that where the Board
concludes that a petitioner has failed to establish a prima facie
case for the underlying substantial relief sought, “the Board’s
findings of fact should be reviewed for substantial evidence,
while its ultimate decision to reject [the petitioner’s] motion to
reopen should be reviewed for an abuse of discretion.” 290 F.3d
at 170.
We now determine on which, if any, of the three Abudu
grounds the Board denied Korytnyuk’s motion to remand.
Taking Abudu’s first ground, there is no suggestion that the
Board considered Korytnyuk’s prima facie case for an
adjustment of status. To the contrary, the Board’s decision
twice refers to consideration of his application for adjustment of
status as a future event. In the opening paragraph, the decision
states that Korytnyuk filed a motion to remand “so that he may
apply for adjustment of status . . . .” In the paragraph
28
considering Korytnyuk’s motion to remand, the decision states
that “a remand for adjustment of status is not warranted . . . .”
Moreover, nowhere does the decision mention any part of the
substance of Korytnyuk’s application for an adjustment of
status, which Korytnyuk filed with his motion to remand, and
which consisted mainly of his receipt of an approved labor
certification and an approved immigrant petition. Finally, the
sole reason offered by the Board for denying Korytnyuk’s
motion to remand – “the determination that the respondent
participated in criminal activities” – appears wholly unrelated to
his application for adjustment of status on grounds of receiving
an approved labor certification and an approved immigrant
petition. We thus conclude that the Board did not deny
Korytnyuk’s motion to remand on the ground that he had failed
to make a prima facie case for adjustment of status.
Nor do we think the Board held that Korytnyuk had failed
to introduce previously unavailable, material evidence. The
plain text of the Board’s decision compels this conclusion, as it
does not mention any failure by Korytnyuk to introduce
previously available, material evidence. Instead, we think that
here, as “the ultimate grant of relief [was] discretionary,” the
Board “leap[ed] ahead, as it were, over the two threshold
concerns . . . and simply determine[d] that even if they were
met, the movant would not be entitled to the discretionary grant
of relief.” Abudu, 485 U.S. at 104. We base this conclusion on
the Board’s statement that “remand for adjustment of status is
not warranted as a matter of discretion in light of the
determination that the respondent participated in criminal
29
activities . . .” (emphasis added). By its terms, this seems to us
a textbook “leap ahead” denial of a motion to remand.
We review the “leap ahead” denial of a motion to remand
for abuse of discretion. Abudu, 485 U.S. at 105. Abudu,
however, did not establish the standard of review for factual
findings underlying a “leap ahead” denial of a motion to
remand. As will be seen, we find most troubling in this case the
IJ’s factual determination, adopted by the BIA, that Korytnyuk
participated in criminal activities. Thus, we must determine
what standard to apply to the IJ’s factual finding in this case.
We conclude that factual findings underlying a “leap ahead”
denial are reviewed for substantial evidence, and that the
ultimate decision is reviewed for an abuse of discretion.
We base this conclusion on the language of the
transitional rules, which control our review of this case.17 Under
the transitional rules, judicial review of exclusion and
deportation orders must be conducted pursuant to 8 U.S.C. §
1105a(a) (repealed). Mwongera v. INS, 187 F.3d 323, 327 (3d
Cir. 1999). Under that statute, which was in place when Abudu
was decided, agency findings of fact are conclusive “if
supported by reasonable, substantial, and probative evidence on
the record considered as a whole.” 8 U.S.C. § 1105a(a)(4) (West
1996). In other words, agency findings of fact are reviewed for
what is known as “substantial evidence.” The statute makes no
distinction between standards of review of factual findings in
17
See Section II, above.
30
some types of petitions for review versus others. All exclusion
and deportation orders apparently are subject to review for
substantial evidence, whether they appear as denials of direct
appeals or, as here, denials of motions to remand. This
conclusion accords with Abudu, as in that case the Court did not
review a strictly factual finding by the BIA, but a mixed
question of law and fact. 18
Nor is this bifurcated approach novel under our
jurisprudence. As we noted above, in Sevoian, we held that the
bifurcated approach applied to a motion to reopen under
Abudu’s first ground, i.e., whether there was a prima facie case
for the substantive relief sought. 290 F.3d at 170. See also Guo
v. Ashcroft, 386 F.3d 556, 561-62 (3d Cir. 2004) (reiterating
bifurcated approach in petition for review of denial of motion to
reopen under Abudu’s first ground). Upon careful
consideration, we rejected the petitioner’s argument that we
apply de novo review to factual findings. We reasoned that
18
Additionally, we do not believe Abudu established an abuse
of discretion standard of review for purely factual findings
because to have done so would have contradicted the language
of the statute. With the judicial review statute that controls here,
Congress evidently defined the jurisdiction of the federal courts
of appeal to include certain findings of fact: those “supported by
reasonable, substantial, and probative evidence on the record
considered as a whole.” As courts may not narrow
congressionally prescribed jurisdictional boundaries, we decline
to read Abudu to do so.
31
substantial evidence was the better standard because it applied
to petitions for review of direct denials of asylum and was
prescribed for review of final orders of removal under the
IIRIRA, which applied to proceedings commenced after April
1, 1997. In contrast, we decided that the ultimate decision to
deny reopening should be reviewed for abuse of discretion as
some deference was appropriate for decisions made without the
benefit of an evidentiary hearing. Id.
As in Sevoian, we face a question of first impression.
We hold that where, as here, the ultimate grant of relief is
discretionary and the BIA leaps ahead, as it were, over the two
threshold concerns, and determines that even if they were met,
the movant would not be entitled to the discretionary grant of
relief, the Board’s findings of facts should be reviewed for
substantial evidence, while its ultimate decision to reject a
motion to remand should be reviewed for abuse of discretion.19
19
Our published decisions applying abuse of discretion review
to denials of motions to reopen (or remand) under Abudu’s
second and third grounds indirectly support the approach we
adopt today. In no such case have we applied abuse of
discretion review to the BIA’s underlying factual
determinations, for no such case has required us to review
strictly factual determinations. See Ezeagwuna v. Ashcroft, 325
F.3d 396, 409-11 (evaluating mixed question of law and fact for
abuse of discretion); Lu v. Ashcroft, 259 F.3d 127, 134-35 (3d
Cir. 2001) (same). See also Doherty, 502 U.S. at 325-29
(evaluating mixed question of law and fact for abuse of
32
IV.
As the foregoing suggests, we will consider the merits of
this petition for review in two steps. We first review for
substantial evidence the factual finding underlying the BIA’s
denial of Korytnyuk’s motion to remand. In light of the results
of that review, we then will determine whether the BIA’s
ultimate decision denying Korytnyuk’s motion to remand was an
abuse of discretion.
A.
1.
We recently defined the contours of substantial evidence
review in our en banc opinion in Dia v. Ashcroft, 353 F.3d 228,
247-48 (3d Cir. 2003) (paragraph breaks and parallel citations
omitted), stating:
We review the agency’s findings of fact under the
standard found in the [IIRIRA], which provides: “The
administrative findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude
to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Since the
enactment of [the IIRIRA], various courts of appeals,
including our court, have read this standard to require
that the agency support its findings with substantial
evidence, as articulated by the Supreme Court in INS v.
discretion); Abudu, 485 U.S. at 112 (same).
33
Elias-Zacharias, 502 U.S. 478, 481-84 (1992). There,
the Court framed the standard as follows:
The BIA’s determination that Elias-Zacarias was
not eligible for asylum must be upheld if
‘supported by reasonable, substantial, and
probative evidence on the record considered as a
whole.’ 8 U.S.C. § 1105a(a)(4). It can be
reversed only if the evidence presented by Elias-
Zacharias was such that a reasonable factfinder
would have to conclude that the requisite fear of
persecution existed. NLRB v. Columbian
Enameling & Stamping Co., 306 U.S. 292, 300
(1939).
Id. at 481.
We were careful in Dia to reiterate that the IIRIRA
codifies the language that the Supreme Court used in Elias-
Zacarias to describe the substantial evidence standard in
immigration cases. Id. at 248. We underscore today that Elias-
Zacarias, in turn, drew its definition of “substantial evidence”
from the statute that controls our review of this case, 8 U.S.C.
§ 1105a(a)(4) (repealed). Id. (quoting Elias Zacarias, 502 U.S.
at 481). We concluded:
If the IJ’s conclusion is not based on a specific,
cogent reason, but, instead, is based on speculation,
conjecture, or an otherwise unsupported personal
opinion, we will not uphold it because it will not have
34
been supported by such relevant evidence as a reasonable
mind would find adequate. In other words, it will not
have been supported by substantial evidence.
Id. at 250.
2.
To begin, we “must clarify whether we review only the
decision[] of the BIA or [that] of both the IJ and the BIA.”
Abdulai v. Ashcroft, 239 F.3d 542, 548 (3d Cir. 2001). As
“Congress has granted us power to review only final orders of
removal, and because the BIA has the power to conduct a de
novo review of IJ decisions, there is no ‘final order’ until the
BIA acts.” Id. at 549 (citation omitted); IIRIRA § 309(c)(1),
(4) (codified at note to 8 U.S.C. § 1101). However, while “the
‘final order’ we review is that of the BIA . . . [t]here are some
situations in which a court of appeals effectively reviews an IJ’s
decision . . . .” Id. at 549, 549 n.2. For example, where the BIA
“simply state[s] that it affirms the IJ’s decision for the reasons
set forth in that decision . . . the IJ’s opinion effectively becomes
the BIA’s, and, accordingly, a court must review the IJ’s
decision.” Id. at 549 n.2.
Here, the BIA’s denial states: “The [INS] has opposed
the respondent’s motion to remand. We agree that a remand for
adjustment of status is not warranted as a matter of discretion in
light of the determination that the respondent participated in
criminal activities while [in the Ukraine]” (emphasis added).
The clear meaning of this statement is that the BIA adopted the
35
determination of the IJ that Korytnyuk participated in criminal
activities. There is no evidence that the BIA conducted a de
novo review of the record in this case. The sentence just quoted
is the BIA’s sole statement of justification for its denial of
Korytnyuk’s motion to remand. Moreover, the statement offers
no pronoun denoting who made the determination. That is, the
statement does not say, “remand . . . is not warranted in light of
our determination,” but that “remand . . . is not warranted in
light of the determination . . . .” We have no doubt that the BIA
deferred to the IJ’s finding. As the IJ’s opinion concerning
Korytnyuk’s participation in criminal activities effectively has
become the BIA’s, we must review the IJ’s decision. See id. at
549.
Because the IJ’s factual determination that Korytnyuk
participated in criminal activities in the Ukraine was the sole
reason that the BIA denied Korytnyuk’s motion to remand, that
is the only factual determination we review. See Dia, 353 F.3d
at 245. Having summarized above the relevant portions of
Korytnyuk’s testimony before the IJ, see Section I. B. 1., we
now consider whether the IJ’s determination, adopted by the
BIA, was supported by substantial evidence. See id. at 250-51.
Where relevant, we supplement our analysis with details from
the record, which we consider as a whole. 8 U.S.C. §
1105a(a)(4) (repealed); Dia, 353 F.3d at 248.
“Doing so, we find that the IJ’s conclusions do not flow
in a reasoned way from the evidence of record and are, at times,
arbitrary and conjectural in nature.” Dia, 353 F.3d at 250.
36
Instead, we conclude that the IJ based his determination that
Korytnyuk participated in criminal activities on an adverse
credibility determination that itself lacked substantial evidence.
Accordingly, we will remand to the BIA to further explain and
supplement the record on this issue. See id. at 260-61. With
that accomplished, the BIA can determine whether Korytnyuk’s
application for adjustment of status should be considered.20
20
As we discuss at note 22 below, in addition to contending
that the IJ’s decision lacked substantial evidence, Korytnyuk
also claims the IJ’s conduct violated his due process rights. See
Pet. Br. at 27 (“Throughout the hearing, [the] IJ unfairly
reprimanded both Mr. Korytnyuk and Mr. Korytnyuk’s attorney,
demonstrating anger towards them and a predisposition towards
denial of the case, thus[] not permitting Mr. Korytnyuk to be
heard in a meaningful manner and violating his right to due
process.”). The government contends that Korytnyuk waived
this argument by not raising it earlier in any forum. Korytnyuk
replies that he effectively preserved the issue under
Abdulrahman v. Ashcroft, 330 F.3d 587, 595 n.5 (3d Cir. 2003).
We will not reach this question, as we ultimately remand to the
BIA for an abuse of discretion.
We do find such exchanges troubling, however. See note
4, above. Indeed, while we “recognize that assignment of an
[IJ] is within the province of the Attorney General,” if on
remand an IJ’s services are needed, we believe “the parties
would be far better served by the assignment to those
proceedings of a different IJ.” Paramasamy v. Ashcroft, 295
F.3d 1047, 1055 n.4 (9th Cir. 2002) (quoting Garrovillas v. INS,
156 F.3d 1010, 1016 n.4 (9th Cir. 1998) (remanding order based
37
The IJ’s conclusion that Korytnyuk participated in
criminal activities is a direct product of his finding that
Korytnyuk’s overall testimony was not credible. See IJ’s Dec.
at 12-17. We think the record suggests, at the very least, that
Korytnyuk’s credibility requires further investigation. See Dia,
353 F.3d at 251.
First, the IJ’s Decision identifies a “smoking gun” that
purportedly proves that Korytnyuk gave false testimony:
[Korytnyuk] alleged that druzhinnik, a police auxiliary
organization, engaged in crimes in 1992 such as the
on adverse credibility finding for lack of substantial evidence in
part because of apparent IJ bias)). Further,
on remand, if the BIA concludes that [Korytnyuk’s]
testimony is not credible, it must articulate with
specificity any inconsistencies or evasions it finds in his
testimony, must address in a reasoned manner the
explanations that [Korytnyuk] offers for the perceived
inconsistencies or evasions, and must take expressly into
consideration the extreme hostility the IJ exhibited
toward [Korytnyuk] throughout the hearing, commencing
at its very inception, as well as the inevitable effect upon
an individual seeking asylum of an interrogation
conducted in so intimidating a manner by a government
official supposed to be a neutral arbiter.
Garrovillas, 156 F.3d at 1016.
38
following[:] [k]illing of ‘pioneers’ in the Ukrainian
independence movement; [b]eatings of such individuals,
or persons who owned businesses[;] [and] [e]xecutions
of individuals w ho had supported Ukrainian
independence. This assertion is manifestly untrue. . . .
[T]here are no reports that police organizations called
druzhinnik or any other name were responsible for the
kind of crimes that the respondent alleged occurred in
1992. This stark contrast between [Korytnyuk’s]
testimony in Immigration Court under oath and the
objective evidence regarding conditions in Ukraine is the
prime factor indicating that his testimony is not worthy
of belief. There is no plausible context for the claim
made by the respondent.
But there was a plausible context for that claim. The
1992 State Department Country Report on Human Rights
(“Country Report”), on the same page quoted by the IJ, states:
“Torture is prohibited by Ukrainian constitutional law. Police
beatings occasionally have been reported. During student
demonstrations in front of the Parliament building in October
1992, police reportedly beat several students and a foreign
reporter severely.” Country Report at 951-52. We are mystified
as to how the IJ could refer to the page containing this passage
as a “smoking gun” and the “prime factor” showing that
Korytnyuk gave false testimony. We think it supports the
opposite conclusion. Korytnyuk alleged that he was part of a
39
police organization that beat political dissidents in their homes
during off-hours. The Country Report states that “[p]olice
beatings . . . have been reported.” We see only accord between
these two statements. The IJ is correct that the Country Report
does not mention the druzhinnik by name, but that proves
nothing. By its terms, the quotation is general in nature and any
reasonable adjudicator would have taken it as such.
Moreover, the Country Report goes on to cite a specific,
public beating by police of political dissidents in front of the
Parliament building. Here again, we fail to see how this
anecdote does anything but support Korytnyuk’s testimony. To
say, as the IJ implicitly must (for, again, he cites this very
passage), that the facts differ between Korytnyuk’s testimony
about the druzhinnik beatings (done privately, during off-hours)
and this citation (done publicly, presumably during hours when
demonstrations would garner the most attention), is to miss the
point. That is, if Ukrainian police felt free in October 1992 to
beat political protesters in front of the Parliament building, it
follows a fortiori that Korytnyuk’s testimony of police beatings
of political dissidents in the privacy of their homes during the
same time period21 has at least a “plausible context.” As any
reasonable factfinder would be compelled to conclude as much,
the IJ’s finding to the contrary lacks substantial evidence. See
Gao v. Ashcroft, 299 F.3d 266, 278-79 (3d Cir. 2002) (citing
21
Korytnyuk testified that he worked for the druzhinnik during
October 1992.
40
State Department Report as undermining finding of substantial
evidence for IJ’s conclusions regarding foreign toleration of
dissident movement).
Second, having established the lack of substantial
evidence for the “prime factor” the IJ used to conclude that
Korytnyuk lacked credibility, we consider alleged internal and
external contradictions in Korytnyuk’s testimony that the IJ
finds undercut Korytnyuk’s credibility. We focus primarily
upon Korytnyuk’s response of, “I did say that,” to the question
whether he told an INS asylum officer that he had participated
three times in beating people. See Section III. B. 1, above. The
record as a whole, however, prompts us to conclude that no
reasonable adjudicator would have relied on this statement for
the substantive proposition that Korytnyuk participated in
criminal activities or to find that Korytnyuk lacked credibility.
We reach that conclusion chiefly because the statement
was prompted by an interview with an asylum officer that is not
in the record. Korytnyuk, in his briefs, complains that
government counsel improperly failed to produce or submit for
the record an “Assessment Referral Memo” that government
counsel used in an effort to impeach Korytnyuk at his
deportation hearing. Limited as we are to the record, we are not
prepared to go that far. Nothing in the record suggests that
Korytnyuk’s interview with the asylum officer was
memorialized – either in an “Assessment Referral
Memorandum” or in any other form. We are thus left wholly
guessing as to both the circumstances of this interview and what
41
was said in it. 22 Yet, the IJ’s Decision uses Korytnyuk’s
inculpatory testimony prompted by that interview not only to
support his finding that Korytnyuk lacked credibility, but for the
substantive proposition that Korytnyuk participated in the
beatings alleged.23
We repeatedly have emphasized that we are “generally
skeptical” of using reports of asylum interviews as the basis for
finding an applicant lacks credibility where the context for such
interviews is unclear. For example, in Dia, we discounted the
petitioner’s interview with an airport immigration officer as
probative of the petitioner’s credibility in part because the
22
Korytnyuk suggests that the IJ’s reliance on this interview
violated his due process rights because no writing produced
from the interview is in the record. The government responds
that Korytnyuk waived this constitutional argument by failing to
raise and argue it before the BIA. We need not reach this issue
because, as we discuss below, we conclude that reliance on the
interview was impermissible under our cases interpreting the
statutory, substantial evidence standard.
23
“For the respondent to claim that the only knowledge that he
had regarding druzhinnik’s crimes was what he heard from
family members of victims was simply not correct. As he
admitted to the Service’s Asylum Officer, and later, after being
confronted with this fact in Immigration Court, the respondent
had personal, first-hand knowledge of what druzhinnik did to its
victims because he participated in those crimes himself on at
least one occasion.” Dec. at 15 (emphasis added).
42
document memorializing the interview lacked an adequate
foundation:
We do not know how the interview was conducted or
how the document was prepared. We do not know
whether the questions and answers were recorded
verbatim, summarized, or paraphrased. We cannot tell
from the document the extent to which [the petitioner]
had difficulty comprehending the questions, whether
questions had to be repeated, or when and how sign
language was used. Nor does the document reveal
whether [the petitioner’s] responses actually correspond
to those recorded or whether the examiner recorded some
distilled or summary version based on his best estimation
of the response.
353 F.3d at 257 (quoting Balasubramanrim v. INS, 143 F.3d
157, 162 (3d Cir. 1998)). Similarly, in Balasubramanrim, we
discounted the IJ’s adverse credibility finding based on an
airport interview in part because the hand written record of the
interview lacked indicia of reliability. 143 F.3d at 162.
The context and contents of Korytnyuk’s interview with
an asylum officer are far more shrouded in doubt than the
petitioners’ in Dia and Balasubramanrim. To be sure,
Korytnyuk’s interview almost certainly was not any sort of
airport interview, occurring as it allegedly did in 1996, three
years after Korytnyuk came to the United States. And we
acknowledge that, in Dia, we couched our concerns about
asylum interviews lacking context in terms of the unusual
43
context of the airport, 353 F.3d at 257 (“we are generally
skeptical of reliance on reports of airport interviews”), and that
Balasubramanrim involved an airport interview. 143 F.3d at
162.
We think this apparent difference between Korytnyuk’s
case and the petitioners’ in Dia and Balasubramanrim is beside
the point, however. To begin, it obscures the fact that we do not
know where Korytnyuk’s interview with the asylum officer
occurred. More critically, it ignores the fact that in both Dia and
Balasubramanrim a writing existed. The passage quoted above
from Dia and Balasubramanrim focuses on the dubious
credibility of the documents memorializing the asylum
interviews in those cases. Here, we have no document. Yet, the
government asks us to ignore the lack of a writing and not only
conclude that Korytnyuk’s statement to the IJ supports the IJ’s
adverse credibility finding – a step we refused to take in Dia and
Balasubramanrim with a writing in the record – but that his
statement constitutes substantial evidence for the IJ’s finding
that Korytnyuk participated in criminal activities. In light of our
precedents, we will do neither.24
24
We also are troubled that Korytnyuk’s statement to the IJ
occurs soon after he raised concerns about the accuracy of the
translator in relaying his conversation with the asylum officer,
see Qiu v. Ashcroft, 329 F.3d 140, 155 (2d Cir. 2003)
(concluding translator error contributed to BIA decision resting
on factual determinations not supported by substantial
evidence), and immediately following a highly confusing
44
Another alleged contradiction the IJ found in
Korytnyuk’s testimony concerned Korytnyuk’s “attempt to make
it appear that druzhinnik was acting under communist
instructions to suppress Ukrainian nationalists,” an attempt the
IJ found “totally absurd.” IJ’s Dec. at 14. He continued: “After
August 1991, persons who espoused Ukrainian nationalism were
free to state their views and participate in an independent
government. The actions taken by druzhinnik were against
businessmen that druzhinnik was extorting and not because of
the political opinions of the victims.” Id. at 14-15. This was a
“basic truth” that Korytnyuk tried to cover up, the IJ concluded.
Id.
We are perplexed by the IJ’s certainty here. We have
already noted that the Country Report, on which the IJ relies,
states that police beat student protesters in front of the
Parliament building in 1992. That same Report notes that
“[t]here is no Ukrainian law protecting freedom of speech and
press. In August [of 1992] the President issued a warning that
foreign critics of the Government (including journalists) could
be deported within 24 hours.” Country Report at 953. Both of
these pieces of evidence tend to corroborate, rather than to
undermine, Korytnyuk’s testimony that the druzhinnik
suppressed political speech.
Moreover, the IJ’s assertion that the druzhinnik was
extorting businessmen, rather than suppressing Ukrainian
question by the IJ. A.R. at 255-56.
45
nationalism, is patent speculation. In his affidavit, Korytnyuk
claims that druzhinnik members “had beaten a leader of [a
Ukrainian nationalist group] for disseminating information
about the new Ukraine. . . . This man also owned a news stand
which was burnt and his property destroyed.” Aff. at 5. The IJ
concluded that this news stand owner was being extorted by the
druzhinnik for his money, instead of being persecuted for his
speech.
But the record does not support this deduction. While
Korytnyuk acknowledged his suspicions that the druzhinnik was
connected to the mafia, and admitted that the druzhinnik was
partially motivated by greed, he also alleged that the druzhinnik
“did not believe in change or new ideas” and was motivated by
intolerance. Id. Further, the Country Report notes that in 1992
“editions of independent periodicals were reported lost on route
from printing presses to warehouses.” Country Report at 953.
Here again, the record seems to corroborate, rather than to
undermine, Korytnyuk’s testimony. Viewed in light of the
record as a whole, the IJ’s finding is nothing more than
“unsupported personal opinion,” Dia, 353 F.3d at 250, and lacks
substantial evidence.
The IJ also finds contradictions in Korytyuk’s testimony
concerning his personal knowledge of what the druzhinnik did
to its victims. “At one point,” the IJ states, “[Korytnyuk]
alleged that he was merely a ‘lookout’ who did not actually see
what members of druzhinnik did to its victims. At other times,
however, the respondent stated that he had knowledge of what
46
it was that druzhinnik was doing to its victims.” But we think a
reasonable adjudicator would reach the opposite conclusion.
Korytnyuk stated on direct examination that he learned that the
druzhinnik had beaten or injured people through conversations
with victims’ families. Later, on cross examination, Korytnyuk
stated that he saw people who had been beaten coming out of
their houses. We see no necessary contradiction between these
two statements. Without an a priori commitment to
Korytnyuk’s lack of credibility – a commitment no reasonable
adjudicator would have had – we fail to see how the IJ
concluded Korytnyuk had contradicted himself by claiming to
have learned of druzhinnik’s beatings through two independent
means. 25
25
We are similarly untroubled by a related assertion by
Korytnyuk that the IJ found “absurd.” That is, Korytnyuk
claimed that, on the one hand, he served as a mere “lookout” for
the druzhinnik and had relatively little knowledge of its
nefarious activities. On the other hand, he claimed that the
druzhinnik sought to harm him because he knew too much.
Here again, without having prejudged Korytnyuk’s credibility,
we fail to see how the IJ found these statements necessarily
contradictory. Korytnyuk claimed, as a lookout, to have seen
people emerging from their houses beaten. He also placed a
hospital document in the record that describes Korytnyuk having
cracked ribs in February of 1993, when he claimed to have been
beaten by the druzhinnik. See Section IV. B., below. Both of
these pieces of evidence support Korytnyuk’s claim to have
known enough about the druzhinnik’s activities to merit
47
Finally, the IJ makes much of the fact that Korytnyuk
first refused to explain why he was charged with a crime in the
Ukraine and then claimed he had “done propaganda against
Ukraine.” Given that the Ukraine had been independent from
the Soviet Union for two years in 1993, the IJ found that “[t]he
idea that [Korytnyuk] would have been charged with making
‘propaganda’ against the independent Ukrainian state strains
credulity to the uttermost.” IJ’s Dec. at 16. We largely
addressed this conclusion several paragraphs earlier, noting that
it ignores the fact that there was no law protecting freedom of
speech in the Ukraine in 1992. We pause here to note that the
Country Report also states that a Ukrainian journalist was under
investigation in 1992 for libel against the President for giving an
interview critical of the Ukrainian Government. Country Report
at 953. Further, we note that, though admitted only for
identification, the document in the record stating Korytnyuk’s
criminal charge does not specify the nature of the charge. It thus
could stand to reason that Korytnyuk did not know the nature of
the charge, and only guessed that it involved propagandizing.
Yet, the IJ passed over parts of the record supporting
Korytnyuk’s explanation for the criminal charge in favor of the
IJ’s unsubstantiated, personal view: “Well, sir, let me tell [you]
recriminations for leaving the organization. In light of the
record’s consistency here, the IJ’s finding that Korytnyuk lacked
credibility concerning his knowledge of the druzhinnik’s
activities lacks substantial evidence.
48
what I think they accused you of since you don’t want to tell us.
You were an enforcer, sir, for the mafia in Ukraine. That’s why
you were there when they were beating up businessmen and I
wouldn’t doubt that some of these enforcers were also in this
police force . . . .” Such raw speculation does not amount to
substantial evidence. In light of the Country Report, it is the IJ’s
conclusion, not Korytnyuk’s testimony, that “strains credulity.”
In sum, in the IJ’s finding of adverse credibility “the
inferences drawn and conclusions reached are in some instances
non sequiturs, and in others, counterintuitive. The flow of the
reasoning process appears to break down as the IJ, repeatedly,
draws an unreasonable conclusion from a fact susceptible to
differing interpretations.” Dia, 353 F.3d at 251. As in Dia, we
face “an aggregation of empty rationales that devolve into an
unsupported finding of adverse credibility.” Id. Moreover, here
the IJ took a step beyond the IJ’s findings in Dia and
transformed an unsupported finding of adverse credibility into
a positive finding that Korytnyuk participated in criminal
activity. And the BIA relied on that latter finding alone to deny
Korytnyuk’s motion to remand.
We do not conclude that the IJ was bound to find that
Korytnyuk was credible and lacked a criminal past. Id. “Rather,
we recognize the possibility that the IJ’s conclusions might
ultimately be the correct ones. However, we cannot affirm the
IJ’s findings and conclusions on the record presented to us, as
the reasons [he] does provide in support of [his] decision do not
logically flow from the facts [he] considered.” Id. We thus will
49
remand this case to the BIA to further develop and examine the
record concerning Korytnyuk’s credibility and alleged
participation in criminal activities.
B.
1.
As noted above, we review the BIA’s denial of a motion
to remand for abuse of discretion, “mindful of the ‘broad’
deference that the Supreme Court would have us afford.”
Ezeagwuna, 325 F.3d at 409 (citing, inter alia, Lu, 259 F.3d at
131). 26 Under the abuse of discretion standard, we will not
disturb INS decisions unless they are “‘arbitrary, irrational, or
26
The phrase “broad deference” in cases involving BIA
denials of motions to reopen (or remand) likely has its roots in
INS v. Rios-Pineda, 471 U.S. 444, 449 (1985) (referring to the
Attorney General’s “broad discretion” over motions to reopen)
(emphasis added). In that case, the Court considered whether
the BIA exercised its discretion in “unreasoned or arbitrary”
fashion, id. at 451, and whether the denial at issue “was
grounded in legitimate concerns about the administration of
immigration laws and was determined on the basis of the
particular conduct of respondents.” Id. at 451-52. “In this
government of separated powers,” the Court cautioned, “it is not
for the judiciary to usurp Congress’ grant of authority to the
Attorney General by applying what approximates de novo
appellate review.” Id. at 452 (citing INS v. Jong Ha Wang, 450
U.S. 139, 144-45 (1981); INS v. Phinpathya, 464 U.S. 183, 195-
96 (1984)).
50
contrary to law.’” Sevoian, 290 F.3d at 174 (citing Tipu v. INS,
20 F.3d 580, 582 (3d Cir. 1994)).27
2.
Acknowledging the “broad deference” we owe to the
BIA, we conclude that the BIA abused its discretion in this case.
First, as we have explained at length above, there was not
substantial evidence for the BIA’s sole stated basis for denying
Korytnyuk’s motion to remand – the IJ’s factual finding that
Korytnyuk “participated in criminal activities” in the Ukraine.
We hold that it is an abuse of discretion to deny a motion to
remand (or reopen) in an immigration case solely on the basis of
27
The Supreme Court has explained the rationale for this
highly deferential approach:
Motions for reopening of immigration
proceedings are disfavored for the same reasons as are
petitions for rehearing and motions for a new trial on the
basis of newly discovered evidence. Abudu, 485 U.S. at
107-108. This is especially true in a deportation
proceeding, where, as a general matter, every delay
works to the advantage of the deportable alien who
merely wishes to remain in the United States. See Rios-
Pineda, supra, 471 U.S. at 450.
Doherty, 502 U.S.at 325 (parallel citations omitted).
51
a factual finding that lacks substantial evidence, for to do so is
necessarily arbitrary. See id. Cf. Lu v. Ashcroft, 259 F.3d at
134-35 (finding no abuse of discretion in adopting IJ’s
conclusions on mixed questions of law and fact sufficiently
supported by the record); Dia, 353 F.3d at 260 n.29 (refusing to
affirm IJ’s decision on direct appeal where the IJ’s troubling
statements were not offset by otherwise appropriate credibility
determinations and pertained to findings of fact crucial to the
ultimate determination).
Second, we conclude that the Board abused its discretion
in denying Korytnyuk’s motion to remand because it failed to
recognize that the IJ improperly treated Korytnyuk’s proffer of
medical records. In determining whether the BIA abused its
discretion, we must ask whether the BIA “followed proper
procedures and considered the material evidence before it.”
Sevoian, 290 F.3d at 177. We conclude that the IJ may never
have seen material evidence that should have been before him.
Though Korytnyuk does not directly raise the issue, we are
troubled that the record in this case may be incomplete because
the IJ silenced Korytnyuk’s attorney when he tried to confirm
that Korytnyuk’s full medical records were in evidence.
As we record above, see Section I. B., Korytnyuk’s
attorney tried at least twice to ensure that the record contained
all of Korytnyuk’s medical records that Korytnyuk says support
his claim to have been beaten by the druzhinnik for speaking out
against its violence. Yet, both times, the IJ appeared to ignore
the attorney’s specific question – whether the records were in
52
evidence – and instead responded with the assurance that “it”
was in evidence. Indeed, the second time Korytnyuk’s attorney
raised the subject, the IJ rebuked him for raising a subject
already covered. Additionally, in his Decision, the IJ never
mentioned the single hospital record that was in evidence. We
find this significant because if multiple records exist that show
Korytnyuk was beaten, his credibility may be reinforced and,
hence, his criminal background cast into doubt.
While the IJ “is not required to write an exegesis on
every contention,” he must show “that [he] has reviewed the
record and grasped the movant’s claims.” Sevoian, 290 F.3d at
178. We conclude that the IJ here did not “grasp the movant’s
claims” because he potentially did not have all the material
evidence before him. Accordingly, it was an abuse of discretion
for the BIA to deny the motion to remand in reliance on the IJ’s
factual finding of Korytnyuk’s participation in criminal
activities because the BIA did not determine whether it had all
material evidence before it. Cf. Dia, 353 F.3d at 254 (“[T]he IJ
expressed a desire for corroboration . . . , then discouraged Dia
from providing it, only to criticize and penalize Dia for not
providing it. Such arbitrariness necessarily undermines the IJ’s
reasoning.”).
V.
For the foregoing reasons, we will vacate the BIA’s
denial of Korytnyuk’s motion to remand, and remand this case
to the BIA for further development and examination of the
record concerning Korytynuk’s credibility and alleged past
53
criminal activities in the Ukraine, and depending on its
determination, consideration of Korytnyuk’s adjustment of
status application.
54