Dzyuba v. Mukasey (9th Cir., 8/25/08, No. 06-74372)

Wardlaw, Clifton, N.R. Smith (Per Curiam)

     Petitioner was born in Georgia in 1965 and therefore a native and citizen of the U.S.S.R.  He emigrated from Ukraine to the U.S. as a refugee in July 1991; at the time of petitioner's emigration the Ukraine was still part of the U.S.S.R. (the U.S.S.R. was dissolved in December 1991).  Petitioner adjusted to LPR status; when he applied to naturalize he was instead placed in removal proceedings due to convictions for two CMT, an agg felony, and a DV conviction.  Petitioner conceded removability, but applied for withholding and CAT relief.  The BIA on review determined that petitioner could be removed to Ukraine since he'd last entered the U.S. on a Ukrainian passport and therefore could be removed to the Ukraine under 1231(b)(2)(E)(i).

     The 9th Cir. stated that the BIA was incorrect - the passport in the record was issued by the U.S.S.R., not the Ukraine.  The 9th Cir. noted that the BIA's error led it to avoid the key legal question here - was the Ukraine a "country" when petitioner left from there to emigrate to the U.S. as a refugee.  The 9th Cir. held it owed the BIA Chevron deference to make an initial determination whether the Ukraine was a "country" within the meaning of the INA's removal sections and therefore remanded to the BIA.  The 9th Cir. had earlier noted that the term "country" was used throughout the INA and that it must mean the same thing throughout the INA.

Read opinion here

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