United States 7th Circuit Court of Appeals Reports
GUTNIK v. GONZALES, 05-3007 (7th Cir. 11-29-2006) ILYA
PETROVICH GUTNIK, Petitioner v. ALBERTO R. GONZALES,
Respondent. No. 05-3007. United States Court of Appeals,
Seventh Circuit. Argued September 6, 2006. Decided
November 29, 2006.
Petition for Review of an Order of the Board of
Immigration Appeals. No. A71 164 986.
Before ROVNER, EVANS, and SYKES, Circuit Judges.
EVANS, Circuit Judge.
Ilya Petrovich Gutnik is a 26-year-old native and citizen
of Ukraine who came to live in the United States with his
parents as a legally admitted refugee in 1993 when he was
14 years old. Twenty months later, he adjusted his
immigration status and became a lawful permanent resident,
the first of many steps on the path to becoming a U.S.
citizen. Unfortunately for Gutnik, his path was interrupted
by convictions for four violations of Illinois law between
1999 and 2001. These matters prompted the then-Immigration
and Naturalization Service (INS) (now the Department of
Homeland Security) to institute removal proceedings against
him. When the immigration judge (IJ), later affirmed by the
Board of Immigration Appeals (BIA), found Gutnik removable
as charged but granted his application for withholding of
removal, Gutnik filed this petition for review, challenging
both the application of particular removal grounds to some
of his convictions and the IJ’s conclusions as to the
unavailability of certain forms of relief from removal.
Gutnik is Jewish, and during his time in Ukraine,[fn1]
both before and after the collapse of the former Soviet
Union, he and his family were on the receiving end of
substantial persecution for their ethnicity and religious
beliefs. The family (Gutnik, his parents, and his younger
brother) fled Ukraine and entered the United States as
refugees under the Lautenberg Amendment. See Foreign
Operations, Export Financing, and Related Programs
Appropriations Act of 1990 § 599D, Pub.L. No.
101-167, 103 Stat. 1195 (1989). After the one-year waiting
period under 8 U.S.C. § 1159(a)(1) expired, Gutnik
adjusted his immigration status and became a lawful
permanent resident. Because the adjustment of status by a
refugee operates retroactively, see id. §
1159(a)(2), Gutnik was regarded as admitted for permanent
residence as of August 27, 1993, the exact date when he
arrived in the United States. This backdating is
significant because it enables a noncitizen to seek U.S.
citizenship at least a full year earlier than would
otherwise be possible. Rather than waiting 5 years from
early 1995 when he adjusted his status, Gutnik could have
undertaken the naturalization process as soon as August 23,
1998, so long as he maintained his U.S. residency and
stayed out of trouble until that time. Ultimately, his
parents and younger brother completed the naturalization
process and became U.S. citizens.
But Gutnik had problems. Not long after those 5 years
passed, he pled guilty to possession of drug paraphernalia
in Cook County, Illinois. This started a 3-year habit of
running into trouble with the law. He was convicted of that
crime on February 4, 1999. Three other convictions
followed: on May 24, 2000, for retail theft; on March 29,
2001, for possession of a controlled substance (.4 grams of
heroin); and on May 10, 2001, for a second retail theft. As
we said, these activities[fn2] brought Gutnik to the
attention of INS, and in early 2002 it served him with a
notice to appear for deportation proceedings.
INS ultimately charged that Gutnik was removable on three
separate grounds: (1) the two retail theft offenses were
multiple convictions for crimes of moral turpitude under 8
U.S.C. § 1227(a)(2)(A)(ii); (2) his 1999 conviction
for possession of drug paraphernalia and 2001 heroin
possession offense each constituted crimes relating to a
controlled substance under § 1227(a)(2)(B)(i); and
(3) his conviction for heroin possession was also an
aggravated felony under § 1227(a)(2)(A)(iii). In
response, Gutnik disputed the INA’s characterization for
immigration purposes of his heroin and paraphernalia
offenses and applied for several deferrals from removal:
asylum, cancellation of removal, withholding of removal,
relief under the Convention Against Torture (CAT), and a
§ 1159(c) waiver of inadmissability in conjunction
with an adjustment of status to permanent residency.
In 2004, following a hearing, an IJ ordered Gutnik’s
permanent resident status terminated and denied his
applications for asylum, cancellation of removal, and a
waiver of inadmissability. The IJ held (1) that Gutnik’s
heroin possession conviction is an aggravated felony under
8 U.S.C. § 1227(a)(2)(A)(iii) rendering him
ineligible for asylum; (2) that the conviction for
possession of drug paraphernalia constitutes a controlled
substance offense under § 1227(a)(2)(B)(i); and (3)
that Gutnik was ineligible to apply for the waiver of
inadmissability available to refugees under 8 U.S.C.
§ 1159(c) because his adjustment of status to a
permanent resident in 1995 terminated his refugee status. At
the same time, the IJ found Gutnik’s testimony to be
credible, noting that he had suffered past persecution on
the basis of his ethnicity and religious beliefs and would
be likely to do so again if he was returned to Ukraine; he
therefore granted Gutnik’s request for withholding of
removal. Having done so, the IJ declined to address
Gutnik’s application for relief under the CAT. On appeal,
the BIA issued a brief order in accordance with the
streamlining procedures of 8 C.F.R. § 1003.1(e)(5)
that adopted, affirmed, and supplemented the IJ’s decision.
So as things stand now, Gutnik is relieved, at least until
conditions improve, from being returned against his will to
Ukraine. But without a grant of asylum or a § 1159(c)
waiver of inadmissability, his is a limited victory.
Withholding of removal does not prevent the government from
removing him to some other country, nor does it offer him
any avenue to regain his permanent resident status. With
this in mind, Gutnik appeals the BIA’s order affirming the
decision of the IJ. Our jurisdiction is provided by
8 U.S.C. § 1252(a)(2)(D) (authorizing review of
constitutional claims and questions of law raised in a
petition for review of removal proceedings). The IJ’s
decision, as supplemented by the BIA, serves as the basis
for our review. Niam v. Ashcroft, 354 F.3d 652, 655-56 (7th
Cir. 2004).
Gutnik filed his opening brief on September 19, 2005. He
now admits that all of his Illinois crimes constitute
convictions under the immigration laws and that he is
eligible for removal from this country on the basis of two
separate statutory grounds: His two convictions for retail
theft are multiple crimes involving moral turpitude under
§ 1227(a)(2)(A)(ii), and his heroin possession
conviction is a controlled substance offense under §
1227(a)(2)(B)(i). But he challenges several other
conclusions of the IJ, as affirmed by the BIA.
Gutnik first argues that his heroin possession conviction,
a felony in Illinois, is not an aggravated felony under
§ 1227(a)(2)(A)(iii) because at the federal level
that crime is punishable as a misdemeanor. At the time of
Gutnik’s brief, this circuit had yet to adopt this
so-called “hypothetical federal felony approach” for
characterizing violations of state law as aggravated
felonies for the purposes of § 1227(a)(2)(A)(iii).
But in Gonzales-Gomez v. Achim, 441 F.3d 532 (7th Cir.
2006), we did just that. The government concedes the direct
application of Gonzales-Gomez, which removes the bar to
Gutnik’s asylum claim. We must therefore remand to the BIA
for further proceedings.[fn3]
In fact, it appears that Gutnik has already demonstrated
his eligibility for asylum.[fn4] As we have said, the IJ’s
grant of withholding of removal indicates that Gutnik
established that he is more likely than not to be
persecuted upon return to Ukraine. The standard of proof to
demonstrate refugee status, and therefore eligibility for
asylum, see 8 U.S.C. §§ 1101(a)(42)(A) &
1158(b)(1)(B)(i) — a “well-founded fear of
persecution” — is lower. INS v. Cardoza-Fonseca, 480
U.S. 421, 448-49 (1987). It remains for the government to
favorably exercise its discretion in granting asylum to
eligible refugees. Ghebremedhin v. Ashcroft, 392 F.3d 241,
244 (7th Cir. 2004).
Gutnik next asks us to review the IJ’s conclusion that his
Illinois conviction for possession of drug paraphernalia is
a violation of a law relating to a controlled substance
under 8 U.S.C. § 1227(a)(2)(B)(i):
Any alien who at any time after admission has been
convicted of a violation of . . . any law or regulation of
a State . . . relating to a controlled substance (as
defined in section 102 of the Controlled Substances Act
(21 U.S.C. 802)), other than a single offense involving
possession for one’s own use of 30 grams or less of
marijuana, is deportable.
The government defends the IJ’s view and points to the case
upon which the IJ relied, Luu-Le v. INS, 224 F.3d 911 (9th
Cir. 2000), where the Ninth Circuit found that an Arizona
drug paraphernalia statute was indeed covered by this INA
provision.
We find it strange that under the Luu-Le interpretation of
the statute a noncitizen caught with a small article of
paraphernalia used to consume a tiny quantity of mari-juana
could be removable, while a noncitizen actually caught with
the drug, so long as it was less than 30 grams, would be in
no such danger because of the express exception §
1227(a)(2)(B)(i) provides for small-quantity marijuana
offenses. This is not merely some abstract possibility
— it may well describe this case. The IJ asked
Gutnik about his conviction for possession of drug
paraphernalia:
Q. And where were you arrested at that time? How was it
that you were charged with possession of drug
paraphernalia?
A. I was in a car with — and smoking a joint, and a
police officer pulled up.
This description of the events, if true, suggests that
whatever “paraphernalia” Gutnik was caught with was clearly
for his personal use of less than 30 grams of marijuana.
Unfortunately, the record provides no further details about
the conduct behind Gutnik’s paraphernalia conviction, and
the Illinois statute in question, 720 ILCS 600/3.5, does
not limit its application to offenders holding
paraphernalia that will be used with more than 30 grams of
marijuana.
What we do know is that Gutnik pled guilty to the
possession of drug paraphernalia charge. Knowing this, and
based on his testimony regarding his conduct, we might
deduce that he agreed to plead to the lesser paraphernalia
charge rather than face conviction for marijuana
possession. Yet, under the Luu-Le approach to §
1227(a)(2)(B)(i) urged by the government, Gutnik became
deportable by pleading to the lesser crime. Had he instead
taken his chances with the more serious conviction for
marijuana possession, he would have faced no immigration
consequences. Talk about absurd results.
But neither side tells us why it is necessary to decide
this issue at this time. The IJ was concerned with whether
the drug paraphernalia offense relates to a controlled
substance because of the effect he believed the resolution
of that question would have on Gutnik’s application for
cancellation of removal. One of the requirements to be
eligible for that form of relief is to have continuous
physical presence in the U.S. for 7 years. See 8 U.S.C.
§ 1229b(a). Under § 1229b(d)(1), continuous
physical presence ends when a noncitizen commits a
deportable offense or when he or she is served with a
notice to appear, whichever occurs earlier. Gutnik was
served with a notice to appear in 2002, but all of his
convictions preceded that time, and the first of these was
the drug paraphernalia offense in early 1999. In other
words, because Gutnik arrived in the U.S. in August of
1993, the effect of the IJ’s ruling that the drug
paraphernalia offense made him deportable was to preclude
his eligibility for cancellation of removal.
But Gutnik has since conceded that he is ineligible for
cancellation of removal based upon his two retail theft
convictions, regardless of whether possession of drug
paraphernalia is a deportable offense. Beyond that, we can
find no other reason why the issue now matters. As we have
said, Gutnik has already conceded deportability on other
grounds. His eligibility for asylum is also unaffected: the
IJ has already held that none of his convictions constitute
a particularly serious crime under §
1158(b)(2)(A)(ii), and there is no serious argument after
Gonzales-Gomez that possession of drug paraphernalia in
Illinois is an aggravated felony. Neither is the exercise
of discretion upon review of his asylum application at
stake: Criminal activity is taken into account as an
adverse discretionary factor in asylum application
proceedings whether or not that activity also happens to
make a noncitizen removable. See Shahandeh-Pey v. INS, 831
F.2d 1384, 1388 (7th Cir. 1987) (describing adverse factors
properly considered at discretionary stage of asylum
proceedings); cf. Dhine v. Slattery, 3 F.3d 613, 619 (2d
Cir. 1993) (“Seven convictions over seven years —
even seven misdemeanors — easily furnish a rational
basis for the Attorney General’s exercise of discretion.”).
None of this is to suggest that Gutnik’s four convictions
should outweigh his fear of future persecution if returned
to Ukraine, his strong family ties to the U.S., and any
other discretionary factors that weigh in his favor. It is
for the BIA to make that determination on remand,
exercising the authority given it by the Attorney General.
See INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999). But
we simply see nothing that will change for Gutnik by our
addressing this aspect of the IJ’s decision, and so we
decline to do so.
Finally, Gutnik appeals the IJ’s decision that he is
ineligible at this time to apply for a nunc pro tunc waiver
of inadmissibility under 8 U.S.C. § 1159(c) in
conjunction with an adjustment of status. Whether or not
the BIA grants Gutnik’s application for asylum on remand,
his criminal convictions render him inadmissible to the
United States under 8 U.S.C. § 1182(a), meaning that
he is precluded from successfully adjusting his status to
lawful permanent residency absent some form of waiver. See
generally § 1159. If Gutnik can apply for and be
granted that waiver now notwithstanding his asylum
application, he can immediately try to adjust his status to
lawful permanent resident status under § 1159(a),
backdated to his initial date of entry in 1993. This result
would also make him immediately eligible to naturalize and
become a U.S. citizen.
But if he is not eligible to apply for that waiver now,
Gutnik must hope for a grant of asylum and wait one year
before he can apply. If a waiver is then granted, he may
adjust status under § 1159(b), but he will be
subject to two less favorable conditions. First, his
adjustment of status will be subject to the annual
numerical limitation on the number of adjustments for
asylees, see § 1159(b); 8 C.F.R. §
209.2(a)(1)(vi). Because history suggests that the number
will be exceeded, Gutnik will be placed on a waiting list.
Second, whenever he is finally able to adjust status, his
lawful permanent residency will only backdate one year from
the date of approval of the application. § 1159(b).
In other words, it will be some time before he can seek
U.S. citizenship.
Eligibility for the more desirable § 1159(a)
adjustment requires that a noncitizen have been admitted to
the United States as a refugee under 8 U.S.C. §
1157. We have already said that Gutnik meets the definition
of refugee under 8 U.S.C. § 1101(a)(42). But in
order to achieve refugee status, a noncitizen must do more
than simply meet that definition. He must undergo an
application process, which requires among other things that
he have a sponsor, fill out and file a form, and undergo an
interview. Gutnik went through this when he came to the
United States the first time. But the government argues,
and the IJ agrees, that Gutnik’s formal refugee status
ended when he adjusted to lawful permanent residency.
Gutnik disagrees. He contends that he continues to
maintain refugee status in perpetuity because §
1101(a)(42) contains no temporal limits and the INA and
subsequent regulations provide formal procedures by which
the government may terminate refugee status, see §
1157(c)(4); 8 C.F.R. §§ 207.9, 240.35(c), and
none of those procedures have been undertaken here. He also
points to § 1159(a), which explains that refugees
under § 1157 who adjust status shall be “regarded as
lawfully admitted to the United States for permanent
residence.” § 1159(a)(2) (emphasis added). Under
Gutnik’s reading, the “regarded as” language says it all:
after he adjusted status, he was, in legal effect, a
refugee regarded as a lifetime permanent resident. Once the
government successfully terminated his lawful permanent
resident status, Gutnik simply reverted to being a “mere”
refugee. In his view, the government must take a further
formal step, which it has not, to strip away that status.
The government counters by pointing out that adjustment of
status under § 1159(a) only applies to noncitizens
who have not “acquired permanent resident status.” Id.
§ 1159(a)(1)(C). Gutnik may have lost his permanent
resident status, but that does not negate the fact that he
has already acquired it. The government has also unearthed
some favorable legislative history that suggests a
congressional intent for refugee status and lifetime
permanent residency to exist exclusively of one another.
See, e.g., 126 Cong. Rec. S3756, 3757 (Feb. 26, 1980)
(describing how new refugee status will end after one year,
“after which the refugee can adjust to permanent resident
status”).
Where the language of the INA is ambiguous, we will
ordinarily accord Chevron deference to the BIA’s reading if
it is based on a permissible construction. INS v.
Aguirre-Aguirre, 526 U.S. 415, 424-25 (1999). The wrinkle
here is that the BIA’s decision was issued under the
streamlined procedures of 8 C.F.R. § 1003.1(e).
Those procedures direct a single BIA member (rather than
the three-member panel traditionally used) to dispose of
appeals either by affirming the IJ’s opinion without order,
see § 1003.1(e)(4), or by supplementing that opinion
with a “brief order,” see § 1003.1(e)(5).
Here the BIA followed § 1003.1(e)(5) and issued a
brief order agreeing with the immigration judge and
supplementing his reasoning:
Although the respondent was admitted to the United States
as a refugee under section 209 of the Act, his status was
subsequently adjustment [sic] to lawful permanent
resident. The respondent’s contention that he remains
eligible for a section [1159(c)] waiver under these
circumstances places him at an unfair advantage over other
aliens and would improperly insulate him from his criminal
misconduct which occurred many years after his arrival as
a refugee.
We have not previously directly addressed the issue whether
BIA interpretations made pursuant to the streamlined
procedures of § 1003.1(e) merit Chevron deference,
although deference appears to have been assumed in some
cases. See, e.g., Knutsen v. Gonzales, 429 F.3d 733, 736
(7th Cir. 2005). But Gutnik directs us to a decision from
the Third Circuit, Smriko v. Ashcroft, 387 F.3d 279 (3d
Cir. 2004), that he insists is applicable here.
The facts of Smriko look strangely familiar. The case
involved the appeal of a citizen of Bosnia-Herzegovina
admitted to the United States as a refugee but convicted of
three retail theft offenses that earned him the INA’s
attention. 387 F.3d at 282. Like Gutnik now, Smriko argued
that he maintained his refugee status even after being
stripped of his permanent residency because it could only
be terminated in accordance with certain enumerated grounds
in the INA. Id. at 283. The IJ disagreed, finding without
reference to supporting precedent that Smriko’s refugee
status ended when he adjusted to permanent residency. Id.
at 282. The IJ ordered his removal and a single BIA member
affirmed without opinion, pursuant to the stream-lined
procedures of 8 C.F.R. § 1003.1(e)(4). Id.
On appeal, the Third Circuit determined, as we do, that the
INA provisions relating to the interplay between refugee
and permanent resident status are ambiguous. It then noted
that, although under Chevron and Aguirre-Aguirre it would
usually defer to a plausible “agency answer,” the IJ’s
decision “offered no analysis of the relevant statutory
provisions,” which, when combined with the single-member
BIA affirmance without opinion, left the court with no
analysis of the statutory interpretation issue to which it
could defer. Id. at 288-89. The court then questioned
whether the very rationale underlying Chevron deference
could be said to apply to the streamlined procedures:
As Aguirre-Aguirre determined that the BIA’s case-by-case
decision-making should be accorded Chevron deference, it
would seem to be, at the very least, an open question as
to whether an IJ’s decision affirmed through the
streamlining process would be entitled to Chevron
deference. Although the BIA has directed us to review the
IJ’s opinion in streamlined cases, deferring to the
reasoning of an IJ from which the BIA would be free to
depart in other cases would seem highly problematic.
Id. at 289 n. 6 (emphasis in original).
Despite Gutnik’s pleas to the contrary, however, his case
differs from Smriko. Unlike in that case, the IJ’s order as
to Gutnik was not affirmed without opinion under 8 C.F.R.
§ 1003.1(e)(4); the BIA used the alternative
streamlined procedures of 8 C.F.R. § 1003.1(e)(5).
In other words, the BIA provided reasoning, albeit brief,
to which we can defer. Even though we might interpret the
statute in Gutnik’s favor upon de novo review of the issue,
we are mindful that “[j]udicial deference to the Executive
Branch is especially appropriate in the immigration
context.” Aguirre-Aguirre, 526 U.S. at 416. We therefore
adopt the BIA’s interpretation.
But we are not finished with Smriko. Gutnik has made an
additional argument that his case was improperly subjected
to the streamlined review process in the first place
because the legal issue regarding the effect of adjustment
of status upon a noncitizen’s refugee status is not
governed by any prior BIA or federal court precedent. As a
result, Gutnik argues, his case falls within one of the
exceptions set forth in the streamlining regulations at 8
C.F.R. § 1003.1(e)(6) such that his appeal of the
IJ’s decision should have been reviewed by a three-member
BIA panel. Cf. Smriko, 387 F.3d at 289. Section
1003.1(e)(6) provides:
Cases may only be assigned for review by a three-member
panel if the case presents one of these circumstances:
(i) The need to settle inconsistencies among the rulings
of different immigration judges;
(ii) The need to establish a precedent construing the
meaning of laws, regulations, or procedures;
(iii) The need to review a decision by an immigration
judge or the Service that is not in conformity with the
law or with applicable precedents;
(iv) The need to resolve a case or controversy of major
national import;
(v) The need to review a clearly erroneous factual
determination by an immigration judge; or
(vi) The need to reverse the decision of an immigration
judge or the Service, other than a reversal under §
1003.1(e)(5).
In Georgis v. Ashcroft, 328 F.3d 962 (7th Cir. 2003), we
found that the streamlined review scheme withstands
constitutional challenge on due process grounds, but we
also hinted at some room for courts to monitor the
application of those procedures to a given case. Although
Gutnik has not referenced Georgis in his brief, his
argument sounds like an attempt to present his case as an
example of a particularly troublesome hypothetical scenario
that we anticipated in that decision.
In the course of considering a challenge to the use by the
BIA of the streamlining procedures, we determined in
Georgis that in most cases our ability to undertake a full
review would not be affected by the propriety of the BIA’s
decision whether or not to streamline a case because, even
if the BIA had given us nothing to review, we could still
look to the IJ’s opinion. Id. at 967. But we also noted one
example in which we believed the use of those procedures
could make a significant difference. As we explained:
Consider, on the other hand, a case that is not
“controlled by existing Board or federal court precedent”;
for instance, a case interpreting a new regulation. If the
BIA (improperly) streamlined that case, which then came
before us on appeal, it could make a slight difference
whose decision we review. If we look at the IJ’s, we would
decide the legal issue on the merits. But if we look at
the BIA’s, we would simply say that the case should have
been considered by a three-Member panel and remand to the
BIA for consideration. And this latter course seems
preferable because it gives the BIA the first crack at
interpreting its own rules.
Id. at 967 n. 4.
Although the issue was discussed in Jarad v. Gonzales, 461
F.3d 867 (7th Cir. 2006), we have yet to definitively
determine whether we even have jurisdiction to review a BIA
decision to commit an appeal to streamlined procedures.
Other circuits have split on this question. Compare
Kambolli v. Gonzales, 449 F.3d 454, 460-65 (2d Cir. 2006)
(no jurisdiction), and Tsegay v. Ashcroft, 386 F.3d 1347,
1353-58 (10th Cir. 2004) (same), and Ngure v. Ashcroft, 367
F.3d 975, 983 (8th Cir. 2004) (same), with Smriko, 387 F.3d
at 290-95 (remanding case for three-member BIA panel
review), and Chong Shin Chen v. Ashcroft, 378 F.3d 1081,
1086-88 (9th Cir. 2004) (same), and Haoud v. Ashcroft, 350
F.3d 201, 206-08 (1st Cir. 2003) (same). But assuming that
we do, Gutnik’s case, though similar, is not the
hypothetical we envisioned in Georgis. Like Smriko, Georgis
was concerned with the situation in which the BIA affirmed
the IJ without opinion under 8 C.F.R. §
1003.1(e)(4). The discussion in Georgis recognizes that,
because (e)(4) provides that a single BIA member “may
affirm . . . if the Member determines . . . that . . . the
issue on appeal is squarely controlled by existing Board or
federal court precedent,” we would have some concerns
— again, assuming jurisdiction — if the novel
issue reached by the IJ here were simply affirmed without
opinion.
We point out again that for Gutnik, the BIA issued a brief
order under the (e)(5) procedure. That provision does not
expressly require the reviewing single Board member to
abstain from resolving issues not controlled by existing
precedent. Instead, it says only that “the Board member
shall issue a brief order affirming, modifying, or
remanding the decision under review, unless the Board
member designates the case for decision by a three-member
panel. . . .” 8 C.F.R. § 1003.1(e)(5). We read
(e)(4) and (e)(5) together to require only that the BIA not
review cases resolving novel issues by affirmance without
opinion. At that point, the single BIA member may elect to
refer the appeal to a three-member panel, but there is no
requirement that she do so.
It may well be preferable as a theoretical matter that
resolution of any legal questions not controlled by prior
precedent be submitted to a three-member BIA panel for
review, and we would encourage the BIA to proceed in this
fashion when possible. But to read the streamlining
regulations contrary to their plain language and require
such a step would greatly weaken their designed effect by
encouraging BIA members to ignore the (e)(5) procedure
altogether and send anything requiring elaboration to a
three-member panel. It would only exacerbate the
difficulties created by the BIA’s already heavy caseload.
In any case, the use of the (e)(5) procedure tempers the
fears we raised in Georgis: the BIA has indeed had “first
crack” at interpreting its own rules in this case, and IJs
addressing this issue in the future will have authoritative
precedent upon which to rely. We therefore affirm the BIA
on this issue. Gutnik no longer qualifies as a refugee and
is therefore ineligible to apply for a § 1159(c)
waiver of inadmissability in conjunction with an adjustment
of status.
The petition for review is GRANTED as to some aspects of
Gutnik’s appeal and DENIED as to others as discussed herein.
The matter is REMANDED for further proceedings. Mr. Gutnik
is awarded costs on his appeal.
[fn1] There continues to be confusion over whether to use
the article “the” in connection with “Ukraine.” In the
briefs, Gutnik’s counsel uses “the Ukraine,” while the
government uses “Ukraine.” Likewise, at joint remarks in
January 2005, Vice President Cheney used “the Ukraine,”
while President Yushchenko, the elected leader of the
country, used “Ukraine.” See Press Release, Office of the
Vice President, Vice President’s Remarks with Ukrainian
President Yushchenko (Jan. 26, 2005) (Villa Decius, Krakow,
Poland). We will use Ukraine, which is not only correct but
is also preferred by Ukrainians themselves, see Associated
Press, Terminology of Nationalism, N.Y. Times, Dec. 3,
1991, at A10, and is the grammatically consistent choice,
see Andrew Gregorovich, Ukraine or “The Ukraine”?, FORUM
Ukrainian Review No. 90, Spring/Summer 1994.
[fn2] Gutnik blames all of his problems on a drug addiction
which he says he has licked, in part by a stay at the
Rosecrance Rehabilitation Center in Rockford, Illinois. He
went on, he says, to get a GED and enroll at Harper College
(Palatine, Illinois), where he attained a 4.0 grade point
average.
[fn3] Gutnik will have his asylum application considered
unless the Supreme Court rejects the position taken by this
circuit in Gonzales-Gomez when it resolves Lopez v.
Gonzales, 417 F.3d 934 (8th Cir. 2005), petition for cert.
granted, 74 U.S.L.W. 3289 (U.S. April 3, 2006) (oral
argument held Oct. 3, 2006). Should that occur, our remand
on the aggravated felony issue will be vacated and Gutnik
will be ineligible for asylum.
[fn4] We assume that Gutnik’s loss of his lawful permanent
resident status some 9 years after his arrival in the
United States constitutes a changed condition that will
permit him to apply for asylum even though it has been far
more than a year since he arrived in the United States.
See 8 U.S.C. § 1158(a)(2).