                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-31-2003

Derevianko v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket 00-4193




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003

Recommended Citation
"Derevianko v. Atty Gen USA" (2003). 2003 Decisions. Paper 833.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/833


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2003 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                                       NOT PRECEDENTIAL

                               UNITED STATES COURT OF APPEALS
                                    FOR THE THIRD CIRCUIT


                                            No. 00-4193


                                     VLADIMIR DEREVIANKO,
                                                    Petitioner

                                                  v.

                              JANET RENO, ATTORNEY GENERAL OF
                                     THE UNITED STATES,
                                                   Respondent


                   ON APPEAL FROM THE UNITED STATES IMMIGRATION
                           AND NATURALIZATION SERVICE
                             Agency No. 0090-1 : A75-801-920
                                      __________

                                       Argued January 13, 2003
                                            __________

                          Before: SCIRICA, BARRY, and SMITH, Circuit Judges

                                   (Opinion Filed: January 31, 2003)




Lawrence Spivak, Esquire (Argued)
Suite 803
299 Broadway
New York, NY 10007

Attorney for Petitioner
Aviva L. Poczter, Esquire (Argued)
John L. Davis, Esquire
Richard M. Evans, Esquire
Terri J. Scadron, Esquire
Matthew R. Hall, Esquire
Emily A. Radford, Esquire
United States Department of Justice
Office of Immigration Litigation
Ben Franklin Station
P.O. Box 878
Washington, D.C. 20044

Attorneys for Respondent

                                             ____________

                                               OPINION
                                             ____________


BARRY, Circuit Judge

        Vladimir I. Derevianko was born in Baltysk, Russia on December 12, 1962 and

resided in the Ukraine from 1980 until the fall of 1997, when he left for the last time and

fled to the United States. Derevianko appeals from a November 20, 2000 decision of the

Board of Immigration Appeals (“BIA”) affirming the April 5, 2000 order of an Immigration

Judge (“IJ”) denying his application for asylum and withholding of removal. At his

administrative hearing, Derevianko testified that criminal charges pending against him in

the Ukraine were trumped-up by corrupt government officials in retaliation for the past

information and testimony he provided in government investigations of official corruption.

He also testified that if he was returned to the Ukrainian authorities, he would be killed by

the same enemies who fabricated the charges against him. Although the IJ, in his written

                                                     2
opinion, expressly found Derevianko’s testimony credible, including his testimony that the

criminal charges pending against him in the Ukraine were fabricated, he nonetheless ruled

that Derevianko’s voluntary trips back to the Ukraine in 1996 and 1997 after visiting the

United States and without requesting asylum indicated that he did not have the requisite

well-founded fear of persecution to warrant a grant of asylum.

        The BIA affirmed for essentially the reasons stated in the IJ’s opinion. In reaching

its conclusion, the BIA found that Derevianko had not questioned before the IJ the

authenticity of the INTERPOL warrant pursuant to which he was arrested by the

Immigration and Naturalization Service (“INS”), and thus the issue was not properly before

the BIA. We have jurisdiction to entertain Derevianko’s petition for review under 28

U.S.C. §§ 2342 and 2349. Because it is clear – both from the IJ’s written opinion and from

Derevianko’s extensive testimony – that Derevianko raised the argument that the

INTERPOL warrant was based on fabricated charges, we will reverse the Board’s decision

and remand for further consideration of Derevianko’s application.

                                                    I.

        The primary evidence offered at Derevianko’s hearing was his testimony describing

his role as a government informant concerning organized crime and official corruption in

the Ukraine from 1991 until he finally left the Ukraine for the United States in 1997.

Derevianko’s career as an informant began when he was recruited by the KGB while a

student in the Ukrainian city of Sevastopol in the 1980s. After his graduation, Derevianko

continued to provide information to the KGB concerning Ukrainian business connections

                                                    3
to foreign companies in his capacity as director of Sovhalish, a Soviet-Kuwaiti joint

business venture that traded in foreign currency. It was in this capacity that Derevianko

made an enemy of the Ukrainian KGB chief, a man named Kuntsevskiy, who blamed

Derevianko for providing information that led to the confiscation of a large shipment of

smuggled champagne. Derevianko was approached and threatened by two individuals

working for Kuntsevskiy. Derevianko suspects that Kuntsevskiy was at least partly

responsible for the fabricated criminal case now pending against him in Sevastopol.

        When the Soviet Union fell in 1991, the Crimean branch of Sovhalish became the

Tavricheskiy Trading House (“Tavricheskiy”). Derevianko stayed on as Director of

Tavricheskiy, and continued to provide information to the KGB’s successor in the Ukraine,

the Ukraine State Security Service (“SBU”), about official corruption and organized crime.

In the summer of 1992, soon after Derevianko took his position with Tavricheskiy, a man

named Zelenchuk came to the Ukraine after being released from a Soviet prison camp in

Siberia. In December of 1992, two men attempted to kidnap Derevianko. Derevianko

assumed that Zelenchuk was responsible because soon thereafter, he offered Derevianko

“protection.” Derevianko accepted the offer at the SBU’s urging in order to learn more

about Zelenchuk’s criminal activities.

        In the fall of 1994, Derevianko became involved in an investigation by the Ukraine

prosecutor’s office of several illegal international metals transactions by Zelenchuk which

resulted in the arrest of Zelenchuk’s closest aide and some local Sevastopol bankers. Since

that time, there was open hostility between Derevianko and Zelenchuk. Indeed, Derevianko

                                                    4
attributes his father’s death – his father was found dead at home in December of 1994

clutching a telephone receiver – to repeated telephone death threats made by Zelenchuk.

Though no formal investigation of his father’s death was ever conducted, Derevianko was

later informed by a friend in the SBU that Zelenchuk was behind the threats. After his

father’s death, Derevianko ceased providing information to the SBU for fear of further

reprisals. Nonetheless, a few months later, somebody fired a machine gun at him as he was

walking from his office to his car.

        Even after he stopped working for the SBU, Derevianko’s troubles with Zelenchuk

continued to escalate. Zelenchuk, having become deputy director of the Ukraine Social

Bank, had developed connections with the vice chairman of the Sevastopol prosecutor’s

office. In March of 1995, Zelenchuk arranged for the prosecutor’s office to initiate an

investigation into Tavricheskiy’s dealings in an attempt to prevent Derevianko from

providing any further information about Zelenchuk’s criminal activities. Apparently not

fazed by Zelenchuk’s threats, attacks and threatened prosecution, however, in May of 1996,

Derevianko served as a primary witness in an investigation of Zelenchuk’s illegal metals

transactions by the Sevastopol office charged with fighting organized crime. Zelenchuk,

however, utilized his official connections to have the investigation terminated. After he

testified, Derevianko was warned by the deputy head of the SBU that it was likely that

Zelenchuk and his associates would make another attempt on Derevianko’s life.

        Knowing that neither the Sevastopol police nor the corrupt SBU could protect him

from Zelenchuk, Derevianko moved from Sevastopol to Kiev (the largest city in the

                                                     5
Ukraine) in August of 1996. One month later, Derevianko’s mother informed him that it

had been reported on the television news that the Sevastopol prosecutor’s office had lodged

a criminal case against him. Though Derevianko was unable to determine the nature of the

charges against him, he assumed that they falsely accused him of wrongdoing as the

Director of Tavricheskiy. Only after he was arrested by the INS pursuant to the INTERPOL

warrant in 1998 did Derevianko learn that the warrant was based not only on false fraud

allegations but also falsely alleged that he had been involved in kidnaping, extortion, and

possession of a firearm.

        Despite his awareness of the trumped-up fraud allegations, Derevianko testified that

he felt safe in his Kiev apartment because he thought it would be difficult for Zelenchuk or

his connections in the Sevastopol prosecutor’s office to find him in Kiev. In November of

1996, the same month Derevianko traveled to the United States to attend a one-week

humanitarian workshop, the daily newspaper Pravda Ukraine published an article accusing

Zelenchuk of being unqualified for his official position and being associated with organized

crime, all based on information provided by Derevianko. Derevianko testified that

Zelenchuk’s cronies beat up two Tavricheskiy employees as a result of the newspaper

article and that Zelenchuk resumed telephone threats to his mother.

        In February of 1997, Derevianko returned to Kiev after a one-week business trip to

the United States and learned that the Sevastopol authorities had issued a warrant for his

arrest. He was unable to learn any details about the nature of the charges. About this same

time, in early 1997, a reporter’s interview with Derevianko was reprinted in the evening

                                                     6
Sevastopol newspaper. In the article, Derevianko accused Zelenchuk of criminal activity

and mentioned Zelenchuk’s arrest for rape of a minor.

        After this interview was published, Derevianko took two additional business trips to

the United States, in April and July of 1997, respectively. He stayed for 10 days in April

and a month in July, returning to Kiev via Moscow both times. Because he knew, albeit

without specifics, of the false criminal case pending against him in Sevastopol and because

the interview in which he openly accused Zelenchuk of various criminal acts had been

published, Derevianko only dared return to Kiev for less than a day on his last visit there in

September 1997. After this brief stop in Kiev to finalize his departure arrangements,

Derevianko never returned to the Ukraine. While he had, by October 1997, managed to

transfer all of his business activities to the United States, Derevianko testified that he was

still hoping that the official corruption situation in the Ukraine might improve after the

upcoming presidential elections such that he could return home. Because the elections

yielded little change in the prevailing corrupt government in the Ukraine, however,

Derevianko remained in the United States.

        After arriving here in the fall of 1997, Derevianko took only two short trips abroad –

one to the Dominican Republic for five days in January of 1998 to renew his immigration

status, and one four-day trip to Hungary to meet with an attorney to learn what he could

about the trumped-up criminal case pending against him in Sevastopol. At the meeting in

Hungary, Derevianko’s attorney reported that he had been unable to learn anything about the

criminal case; indeed, he told Derevianko that the Sevastopol prosecutor’s office had

                                                      7
denied there was a criminal case pending against him.

        Derevianko was arrested by the INS on February 3, 1999 pursuant to an INTERPOL

warrant requested by the Ukranian authorities. The documents attached to the INTERPOL

warrant detailing the factual basis for the arrest request indicate contradictory accounts of

the crimes alleged against Derevianko. The attached arrest warrant from the Sevastopol

prosecutor’s office, dated February 6, 1997, charges Derevianko with the misuse of certain

funds in his position as Director of Tavricheskiy and the concealment of documents

relating to the alleged fraud. Undated supplemental charges signed by the “Colonel of

Militia” of the Sevastopol Administration of the Ukrainian Department of Internal Affairs,

however, not only restate the same fraud charges, but go on to allege that Derevianko

orchestrated a kidnaping in August of 1994 and illegally possessed a firearm. Derevianko

first learned of the nature of the charges when the INS allowed him to review these

documents after his arrest.

        At the hearing before the IJ, Derevianko testified that the charges were completely

fabricated. He went on to explain that only when he was able to review the INTERPOL

warrant and accompanying documents did he understand the nature and severity of the

trumped-up charges against him. He further testified that he had not, until then, realized

that Zelenchuk’s connections were so influential that they could arrange for an INTERPOL

warrant based on false charges to issue. He added that he had little doubt that if he was

turned over to the Ukrainian authorities by the INS pursuant to the INTERPOL warrant he

would be killed while in custody.

                                                     8
         In his written opinion, dated April 5, 2000, the IJ expressly found Derevianko’s

testimony to be “believable, consistent, and detailed.” The IJ further found that the

persecution Derevianko suffered in retaliation for his testimony against official corruption

would qualify as persecution based on his political beliefs. The IJ nonetheless concluded

that Derevianko’s fear of persecution was not sufficiently well-founded to warrant a grant

of asylum because his several voluntary return trips to the Ukraine in late 1996 and 1997

and his failure to seek asylum when in this country showed that he did not have the requisite

well-founded subjective fear of persecution. The IJ’s opinion did not address the 1999

Ukraine country reports from the State Department and Amnesty International submitted by

Derevianko as exhibits. Both reported that official corruption was rampant in the Ukraine,

and that the torture and beating of incarcerated individuals was commonplace, resulting in

the death of several inmates while in official custody.

         The BIA upheld the IJ’s determination in a three-page opinion which essentially

restated the IJ’s reasoning. The BIA did not address Derevianko’s argument that the IJ

failed to consider his testimony that he would certainly be persecuted if delivered into the

custody of Sevastopol authorities pursuant to the INTERPOL warrant rather than returning

to the Ukraine voluntarily. It did find, wrongly given Derevianko’s testimony, that “[t]here

is no indication that new charges were filed with the notification from INTERPOL,” and

that there was no new warrant for his arrest. 4A. It also reasoned, again wrongly, that it was

not appropriate to consider the authenticity of the INTERPOL documents because

Derevianko had not questioned their authenticity before the IJ. And, importantly, the BIA’s

                                                      9
opinion made no mention of the IJ’s express finding that Derevianko’s testimony was

detailed, consistent and believable.

                                                    II.

        Derevianko advances three arguments on appeal: (1) that the BIA’s determination

that he did not have a well-founded fear of persecution was not supported by substantial

evidence; (2) that the BIA’s determination that he waived his claim for relief pursuant to the

Convention Against Torture on appeal was error; and (3) that the BIA abused its discretion

in denying his motion to reopen the record. For the reasons stated in the BIA’s opinion, we

reject his second and third arguments. For the reasons which follow, we accept his first

argument and remand for further proceedings.




                                                    10
                                                      A.

        Under the well-established standard of review of BIA determinations, we must

sustain the BIA’s decision if it is supported by substantial evidence, often defined as “more

than a mere scintilla and . . . such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Senathirajah v. INS, 157 F.3d 210, 216 (3d Cir. 1998).

In other words, we may reverse the BIA’s factual determinations concerning Derevianko’s

eligibility for asylum and withholding of removal “only if a reasonable fact-finder would

have to conclude that the requisite fear of persecution existed.” INS V. Elias-Zacharias,

502 U.S. 478, 480 (1992).

        An alien is eligible for a discretionary grant of asylum only if unwilling to return to

his or her country of nationality “because of persecution or a well-founded fear of future

persecution on account of race, religion, nationality, membership in a particular social

group, or political opinion.” 8 U.S.C. § 1101(a)(42)(a). If the alien’s application relies on

fear of future persecution, he or she must show a well-founded subjective fear, which is

also “supported by objective evidence that persecution is a reasonable possibility.” Lin v.

INS, 238 F.3d 239, 244 (3d Cir. 2001). The alien has a higher burden to prove eligibility

for the non-discretionary withholding of removal – there must be a “clear probability” that

his or her “life or freedom would be threatened.” 8 U.S.C. § 1231(b)(3)(A); Chang v. INS,

119 F.3d 1055, 1059 (3d Cir. 1997).

        The IJ expressly found, and the BIA did not disagree, that for purposes of

Derevianko’s asylum claim, the persecution alleged by him as a result of his “whistle-

                                                     11
blowing” against official corruption would constitute persecution due to his political

opinion. Thus, the only issue remaining before the IJ was whether Derevianko had

established that he had either been a past victim of persecution or that he had a “well

founded fear” that he would be persecuted by Zelenchuk and others if he returned to the

Ukraine. Accordingly, the only issue on appeal is whether the BIA’s determination that

Derevianko had neither suffered past persecution nor had a well-founded fear of future

persecution was supported by substantial evidence.

        It is clear that one crucial aspect of the BIA’s opinion is not supported by substantial

evidence, but rather is contradicted by the clear record evidence – the BIA’s finding that

Derevianko had not raised the issue of whether the INTERPOL arrest warrant was authentic.

Derevianko clearly raised this issue several times in the course of his testimony before the

IJ. He testified on direct examination that the criminal charges pending against him in

Sevastopol and the corresponding arrest warrant had been fabricated by Zelenchuk and his

cohorts in retaliation for his testimony concerning Zelenchuk’s illegal metals transactions

and the published interview in which he accused Zelenchuk of criminal activity. AR 405,

410-11, 418.1 Then, in explaining how the authorities could not protect him from these

powerful enemies, Derevianko stated: “the reason for that is they . . . got international

organizations [INTERPOL] involved in the war against me. . . . They . . . weren’t even afraid

to direct or send fabricated documents to INTERPOL.” AR 413.


   1
      Citations in this form are to the Certified Administrative Record submitted by the
parties on appeal.

                                                    12
        On cross-examination, Derevianko reiterated that the criminal charges against him

were fabricated and that the Sevastopol prosecutor’s office had falsely informed his

attorney that no criminal case was pending because no official in Sevastopol “wants to take

responsibility for the documents that have been sent to INTERPOL.” AR 418. Also on

cross-examination, after denying that he had been involved in any of the criminal activity

charged in the documents attached to the INTERPOL warrant (which Derevianko testified

he only saw after he was arrested by the INS), AR 422-23, Derevianko noted specific

deficiencies in the Sevastopol prosecutor’s documents attached to the INTERPOL warrant,

stating “I thought it was a mistake, because the signature is absent and because they are put

together in an unprofessional and unqualified manner. In the arrest warrant, one criminal

case number is listed. In the extract from the criminal case – another number.” AR 433.

        And finally, on re-direct, in his clearest explanation of how the ability of his

enemies to issue an INTERPOL arrest warrant based on fabricated information

demonstrated their power and the depth of the danger he would be in if he returned to the

Ukraine, Derevianko testified:

             They decided to use Ukrainian INTERPOL, American INTERPOL,
             in order to get me in the Ukraine – bring me to the Ukraine. And
             taking into account that those people, at least some of them, still
             have power, and have serious connections in the upper echelons of
             power, and also on noting that they were not afraid to introduce
             this kind of evidence to INTERPOL, it gives me reasons to
             suppose that Kuntsevskiy is using his connections with the
             security service of the Ukraine.

AR 487. Indeed, not only did Derevianko testify that the documents underlying the


                                                     13
INTERPOL warrant were fabricated and that the criminal charges against him were false,

but the IJ’s opinion itself states that Derevianko testified that the criminal charges against

him were trumped-up, that the Sevastopol prosecutor’s office falsely told Derevianko’s

lawyer that no such charges were pending, and that the documents underlying the

INTERPOL arrest request were fabricated. AR 89-91. Moreover, the IJ expressly found

this testimony to be “believable, consistent, and detailed.” AR 94.

        In light of this record evidence, it is clear that the BIA wrongly concluded that

Derevianko had not raised to the IJ the argument that the documents underlying the

INTERPOL warrant were fabricated. The BIA was correct, however, that the IJ’s ultimate

conclusion did not rely on his apparent determination that the INTERPOL arrest request

was based on fabricated documents and trumped-up criminal charges. Rather, for the IJ

(and, in turn, for the BIA), the fact that defeated Derevianko’s claim of a well-founded fear

was his voluntary return to the Ukraine after two 10-day trips to the United States in April

and July of 1997. The IJ reasoned that if Derevianko’s subjective fear of persecution was,

indeed, well-founded, he would not have returned to Kiev in April or July of 1997, after he

had heard that the Sevastopol authorities had issued a warrant for his arrest, but would have

instead remained in the United States and applied for asylum immediately. Cf. Castillo v.

INS, 951 F.2d 1117, 1122 (9th Cir. 1991) (asylum applicant lacked well-founded fear

where he remained in Nicaragua for five and one-half years after being threatened by

Sandanistas); Rodriguez-Rivera v. INS, 848 F.2d 998, 1006 (9th Cir. 1988) (no well-

founded fear where applicant “continued to live undisturbed” in El Salvador for fourteen

                                                     14
months after being threatened by guerillas).

        There is one crucial flaw in the reasoning of IJ, however, which renders his (and, by

extension, the BIA’s) conclusion “unreasonable” and, thus, unsupported by substantial

evidence. The IJ failed to recognize the difference between Derevianko returning to the

Ukraine via Moscow voluntarily, as he did when he returned to Kiev twice in 1997, and

being placed by INS into the custody of the Ukrainian authorities pursuant to false

allegations in an INTERPOL warrant of which he did not know when he returned to the

Ukraine. To deport Derevianko into Ukrainian official custody would guarantee that he

would not be able to evade those individuals responsible for creating the fabricated criminal

case against him in Sevastopol, as he had by hiding in Kiev. Indeed, because the IJ accepted

as credible Derevianko’s testimony that the charges against him were trumped-up and the

documents underlying the warrant were fabricated, placing him in the custody of the

Ukrainian authorities pursuant to a false INTERPOL warrant would in itself constitute

persecution, even without considering reports from the State Department and Amnesty

International describing the substantial risks of violence and death to those incarcerated in

the Ukraine. The BIA itself has recognized that an outstanding arrest warrant on trumped-up

charges constitutes powerful evidence that the authorities in an applicant’s home country

have the “inclination and ability” to persecute the applicant. In re A- S-, 21 I. & N. Dec.

1106, 1120 (1998) (“it is reasonable to conclude that government authorities and political

party members who targeted the respondent in the past continue to have the inclination and

the ability to punish the respondent for his political beliefs . . . especially . . . considering

                                                       15
that the respondent fled Bangladesh while a warrant for his arrest (on allegedly trumped-up

charges) remains outstanding”).

        Ultimately, it is difficult to see how any reasonable fact finder could conclude that

Derevianko would not have well-founded fear of persecution if he is being deported into

the custody of corrupt authorities who have brought false criminal charges against him. Cf.

Blanco-Lopez v. INS, 858 F.2d 531,534 (9th Cir. 1988) (reversing INS denial of asylum

where false criminal charges were still pending against applicant in El Salvador). And here,

we note, wholly apart from Derevianko’s “believable, consistent, and detailed” testimony,

there appears to be an inconsistency between the two separate criminal charging documents

attached to the INTERPOL warrant and the various official signatures on the original

documents seem suspiciously similar.

        If the BIA finds Derevianko’s testimony on these subjects credible, giving due

deference to the IJ’s finding below that his testimony was, indeed, credible, see In re A- S-,

21 I. & N. Dec. at 1109 (“it is . . . well established that . . . the Board accords deference to

the Immigration Judge’s findings concerning credibility and credibility-related issues”),

Derevianko would unquestionably face, at least in our view, the “reasonable possibility” of

future persecution required to be eligible for asylum. See Lin v. INS, 238 F.3d 239, 244

(3d Cir. 2001). Indeed, the BIA could well consider on remand whether his evidence would

satisfy the more stringent burden of proof for eligibility for the non-discretionary

withholding of removal under 8 U.S.C. § 1231(b)(3)(A) – that his deportation into official

custody pursuant to false criminal charges constitutes “a ‘clear probability’ of a threat to

                                                     16
life or freedom.” Chang v. INS, 119 F.3d 1055, 1059 (3d Cir. 1997) (quoting INS v.

Cardoza-Fonseca, 480 U.S. 421, 428 (1987)).

                                                     B.

        One final note. We concluded, above, that the BIA did not abuse its discretion in

denying Derevianko’s motion to reopen the record to allow the IJ to consider an affidavit

from a Ukrainian government official submitted on Derevianko’s behalf. The proffered

affidavit corroborated Derevianko’s testimony that he likely will be killed if returned to the

Ukraine. The Board correctly recognized that the affidavit would have had no effect on the

IJ’s decision because it would simply have corroborated Derevianko’s testimony, but the IJ

had accepted that testimony as credible without corroboration.

        The BIA may, however, deem it appropriate to reconsider the motion to reopen to

consider the affidavit on remand. Because the affidavit is corroborative of Derevianko’s

testimony that the criminal charges against him were trumped-up by his enemies in the

Ukraine and that he would face death if deported into official custody, it is directly material

to the issue on remand. See 8 C.F.R. § 3.2 (c)(1).




                                                    III.

        For the foregoing reasons, we will vacate the determination of the BIA and remand

for further proceedings not inconsistent with this opinion.




TO THE CLERK OF COURT:

                                                    17
Kindly file the foregoing opinion.




                                     /s/ Maryanne Trump Barry
                                     Circuit Judge
