First Motion for an Emergency Stay, Vaskovska v. Holder

No. 14-4382

IN THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

KATERYNA VASKOVSKA 099-097-347

Petitioner,

v.

ERIC H. HOLDER, JR. U.S. Attorney General,

Respondent.

PETITIONER’S MOTION FOR EMERGENCY STAY OF REMOVAL

CUSTODY STATUS: DETAINED

Anjana Malhotra SUNY Buffalo Law School Immigration and Human Rights Clinic 518 O'Brian Hall, North Campus Buffalo, NY 14260-1100 email: [email protected] Phone: 716-645-3696 Fax: 716-645-6199

Attorney for Petitioner

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I. INTRODUCTION AND POSITION OF PETITIONER

Pursuant to Federal Rule of Appellate Procedure 27 and Local Rule 27.1, Petitioner

Kateryna Vaskovska (“Kateryna” or “Petitioner”), through undersigned counsel, moves this

Court for an emergency order staying her removal during the pendency of her petition for

review. The order of removal in Petitioner’s case, dated October 30, 2014, is administratively

final, see Administrative Record (“AR”) 1-6, and the Department of Homeland Security

(“DHS”) presently is at liberty to remove her from the United States. See 8 U.S.C. §

1252(b)(3)(B). Petitioner, a victim of repugnant abuse by her father until she left Ukraine with

her mother as a minor in 2005, argues below that she warrants an emergency stay of removal

because: (1) she has a high likelihood of prevailing on the merits of her petition, (2) she will

suffer irreparable harm if removed, (3) the government will suffer no substantial injury if her

removal is stayed, and (4) a stay of her removal lies in the public interest.

II. STATEMENT OF FACTS AND OF THE CASE

Petitioner Kateryna Vaskovska legally entered the United States from Ukraine as a minor

child with her mother, Nadiya Silva, when she was 17 years old on October 9, 2005, on a valid

K-2 nonimmigrant visa. AR 164, 309, 413. Petitioner’s U.S. Citizen mother, stepfather, Timothy

Silva, and husband, Richard Decker all reside in the U.S. Id.; AR 280-81.

Before coming to the U.S., Kateryna was the victim of severe physical and psychological

abuse at the hands of her father, Mr. Sergey Vaskovsky (“Mr. Vaskovsky”).1 From her birth, Mr.

1 AR 137-43; 228-38; 256-260; 279-83; 393-94; 472, 475, 478, 558-59. 2 AR 141-42, 228, 259, 279-83, 393. 3 AR 137-43; 228-38; 256-260; 279-83; 393-94; 472, 475, 478, 558-59. 4 Ms. Silva, who did not know about asylum, and was left impoverished by her husband, viewed dating a foreigner as the only way to escape Ukraine and protect Kateryna’s life. AR 263-64.Prior to meeting Mr. Silva, Ms. Silva had previously come to the U.S. with Kateryna for the same reasons, but the man was much older and they returned to Ukraine. ER 264. 5 8 U.S.C. §§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii), 8 C.F.R. § 1208.16(c)

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Vaskovsky never accepted Kateryna because she was female.2 Even before she was born, he told

her mother he expected a boy and that “he would kill her and the child, if she bore a girl.” Id.;

AR 141. When Kateryna was born, Mr. Vaskovsky told her grandmother he did not want her

because she was a girl, refused to see her or pay for any of her basic needs, and abandoned her to

live with her grandparents. ER 141-42, 235. Two months later, he apologized and took them

back, but soon began subjecting Kateryna and her mother to frequent and severe physical and

psychological abuse. AR 141-42, 256-8. The abuse included both brutal physical violence and

psychological torment, including death threats, humiliation, abandonment and economic

deprivation.3 Mr. Vaskovsky subjected Kateryna to regular beatings and insults for perceived

infractions or no reason at all, and did the same to her mother and grandmother, as Kateryna

helplessly watched. AR 142, 228-231; 255-58; 393. Kateryna was “always black and blue” and

covered in bruises. AR 142, 255-56. When Kateryna was five, her mother was finally able to

leave Mr. Vaskovsky and get Kateryna out of his path, and moved in with Kateryna’s

grandmother, who lived nearby. AR 141-42, 230.

Despite their attempt to flee, Mr. Vaskovsky stalked his wife and daughter, and his

abusive behavior intensified to include death threats. AR 142; 257-60, 393. On one occasion, he

pursued them at her grandmother’s house with a gun and threatened to kill Kateryna and her

mother if they didn’t return to him. AR 142, 230-31, 247, 258-60, 393. Id. Mr. Vaskovsky would

taunt Kateryna whenever he would see her in public; on one occasion he told her he was going to

destroy her life because she destroyed his. AR 228. Another night, Mr. Vaskovsky hid by their

home and then threatened to disfigure both Kateryna and her mother by throwing acid in their

2 AR 141-42, 228, 259, 279-83, 393. 3 AR 137-43; 228-38; 256-260; 279-83; 393-94; 472, 475, 478, 558-59.

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faces. AR 393, 446. He refused to pay for any of her economic needs, including child support

when Ms. Silva divorced him, leaving them impoverished. AR 142, 262.

Both Kateryna’s mother and grandmother contacted the police for assistance on multiple

occasions for assistance, but the police refused to intervene in what they deemed “family

matters.” AR 231, 257, 261, 141-43. 393. Once, when Kateryna’s grandmother called to report a

brutal attack that left her with a concussion and required hospitalization, they told her they would

not address domestic violence unless someone was dead. AR 142. Police refused to even perform

a perfunctory examination, and instead chastised and even blamed them for reporting their abuse,

counseling them they should do what Mr. Vaskovsky tells them. AR 231, 257, 142-43.

Her father’s attacks and intimidation persisted until Kateryna left Ukraine, subsiding

briefly when he remarried about two years later, but resumed one year after that, after his second

wife left for abusing her as well. AR 276-77. Even during this time, Kateryna lived in perpetual

fear of her father, to the point that she was unwilling to leave her house alone. AR 230. Kateryna

still has physical scars from her father’s beatings on her forehead, nose, upper lip, and legs, AR

243, but the unpredictable and repeated abuse that Kateryna suffered and watched her father

inflict on her mother and grandmother also took a psychological and emotional toll: she would

frequently wake up in the middle of the night crying and was unable to pay attention in school

and was withdrawn, depressed and anxious, symptoms that continue today. AR 142-43, 256-57;

265; 273. Her mother took Kateryna to a psychologist in Ukraine, but they were unable to help

her. Id. Unable to defend against Mr. Vaskovsky’s abuse and cruelty and with no police

protection, she feared for Kateryna’s physical and mental well-being, and for her life. Id.

In 2005, Ms. Silva was finally able to permanently get Kateryna out of Ukraine and her

father’s path on a K-2 visa, after she got engaged to her now-husband, Timothy Silva, who she

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met while he was in Ukraine on vacation. AR 264.4 While Kateryna continued to suffer from

depression and anxiety stemming from her father’s abuse, her life in America began to slowly

improve. AR 265, 556-91. Although initially withdrawn from her step-father, Mr. Silva was

warm and welcoming to Kateryna and this positive and safe environment proved healthy for her.

AR 265, 284. She enrolled in college classes, volunteered with the SPCA, and worked at Target

unloading trucks. AR 235, 392, 323, 696. Eventually, Kateryna met and married her U.S. citizen

husband, Richard Decker. Id.; AR 161, However, in 2007, Kateryna suffered a work accident

that resulted in a serious back injury that prevented her from working and caused her severe pain,

for which she was prescribed narcotic pain medication. AR 233, 557. She made some

improvement, but it was a set back: her worker’s compensation ran out in 2009, her pain

persisted, and she eventually developed an addiction to her pain medication. AR 234, 566, 696.

On October 17, 2012 Kateryna pled guilty to the one count of criminal possession of a

controlled substance in the fourth degree in violation of N.Y. Penal Law 229.09.01, for which

she was served eight months at the NYS Shock Treatment program, designed for non-violent

offenders. AR 189, 201, 234, 237, 429. The conviction involved oxymorphones, pain medication

prescribed to her mother. Id. AR 234, 275. DHS subsequently placed Kateryna in removal

proceedings, charging her with deportability under INA §§237(a)(1)(B) and 237(a)(2)(B)(i). AR

3, 689. Petitioner appeared with counsel and applied for asylum, withholding of removal under

the INA, and withholding and deferral under the Convention Against Torture (“CAT”),5 on the

grounds that she suffered past and had a well-founded fear of future persecution and torture in

4 Ms. Silva, who did not know about asylum, and was left impoverished by her husband, viewed dating a foreigner as the only way to escape Ukraine and protect Kateryna’s life. AR 263-64.Prior to meeting Mr. Silva, Ms. Silva had previously come to the U.S. with Kateryna for the same reasons, but the man was much older and they returned to Ukraine. ER 264. 5 8 U.S.C. §§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii), 8 C.F.R. § 1208.16(c)

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her native country on account of a PSG by her father, and that Ukrainian officials had and would

continue to be unable or unwilling to protect her from her father. AR 388-400; 166.

Following an individual hearing on August 8, 2013, the IJ denied Petitioner’s

applications for relief and ordered her removed. AR 163-83. The IJ did not make an adverse

credibility finding, but concluded that she was 1) ineligible for asylum because she did not file

within a year of arriving to the U.S. and did not qualify for an exemption; 2) ineligible for

asylum and withholding because she failed to show past persecution or a well-founded fear of

future persecution on account of membership in a particular social group; 3) ineligible for

asylum and withholding because her possession conviction was a “particularly serious crime”;

and 4) ineligible for deferral. AR 161-163. Petitioner appealed to the BIA, which dismissed her

appeal on October 31, 2014. AR 1-6. On Nov. 25, 2014, Petitioner timely petitioned this Court

for review of the Board’s decision.6

ARGUMENT

Adjudication of a motion for stay of removal requires that the Court consider four factors:

(1) whether the stay applicant demonstrates a strong likelihood of success on the merits; (2)

whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay

will substantially injure the other parties interested in the proceeding; and (4) where the public

interest lies. Nken v. Holder, 556 U.S. 418, 434 (2009). In Petitioner’s case, all four factors

counsel the granting of a stay.

III. PETITIONER IS LIKELY TO SUCCEED ON THE MERITS OF HER PETITION FOR REVIEW.

6 Also on Nov. 25, 2014, Petitioner filed a motion to reconsider with the BIA on the ground that it erred by failing to consider a directly relevant change which held for the first time that survivors of domestic violence constitute a “particular social group.” See Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014), and committed additional factual and legal errors.

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Because she faces severe, irreparable harm if removed, Kateryna need not show great

likelihood of success on the merits of her Petition for Review in order to receive a stay. See

Mohammed v. Reno, 309 F.3d 95, 101 (2d Cir. 2002). Nevertheless, she is likely to prevail in her

challenge to the BIA’s decision denying her application for asylum, withholding of removal, and

CAT relief. The BIA erred in each of its findings, as described below.7

A. Petitioner Is Likely To Succeed On Her Claim That She Was Wrongly Denied Asylum And Withholding From Removal Because The IJ Failed To Follow Precedent And Ignored Record Evidence Establishing Her Eligibility

To establish eligibility for asylum or withholding of removal, an applicant must show that

she has suffered past persecution, or has a well-founded fear of future persecution, on account of

race, religion, nationality, membership in a particular social group, or political opinion.8 If found

to have suffered past persecution, she is presumed to have a well-founded fear of future

persecution on the basis of the original claim. 9 The IJ, while acknowledging that Kateryna was

“the victim of a tumultuous and abusive childhood at the hands of her father,” AR 173, rejected

that the abuse was persecution occurred on account of a particular social group (“PSG”) because

Mr. Vaskovsky also abused Kateryna’s mother, grandmother, and his next wife and because he

was an alcoholic. AR 173-75. Given that the IJ did not question Petitioner’s credibility10 or

corroborating evidence, his conclusion that she was ineligible for asylum is flatly inconsistent

with the record and the BIA’s own precedent in light of its recent decision in Matter of A-R-C-G,

26 I. & N. Dec. 388 (BIA Aug. 26, 2014).

7 Because the BIA adopted and supplemented the IJ's decision, this Court “review[s] the decision of the IJ as supplemented by the BIA.” Delgado v. Mukasey, 508 F.3d 702, 705 (2d Cir. 2007). 8 See 8 U.S.C. § 1101(a)(42); 8 C.F.R. §§ 1208.13(b); 1208.16(b). 9 8 C.F.R. §§ 1208.13(b)(1), 1208.16(b)(1). 10Because the IJ did not make an adverse credibility finding for Petitioner, she is entitled to a rebuttable presumption of credibility. 8 U.S.C. § 1158(b)(1)(B)(iii).

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First, the Board erred by failing to consider its precedent decision in Matter of A-R-C-G-,

which was decided after this matter was briefed, and which nullified a key basis of the IJ’s

finding that petitioner was not persecuted on account of a particular social group. In A-R-C-G,

the BIA found for the first time that victims of domestic violence can be a particular social group

eligible for asylum or withholding of removal based on the past harm the victim has suffered,

where the government has failed to intervene. Matter of A-R-C-G, 26 I & N at 390. While the

PSG analysis is fact specific, Petitioner gave testimony and provided country reports in which

she detailed a pattern of serious physical abuse from which police refused to protect her, in a

similar gender and familial/domestic context to the respondents in A-R-C-G.11 The failure of the

Board to consider the implications of that watershed case and for this one is reversible error.12

Further, because A-R-C-G- has implications for all elements of an asylum claim like this

one, including the “nexus” requirement, Petitioner has a strong likelihood of success on her

claim that the IJ erred in finding that her father did not persecute her “on account of her

membership” in that group.13 At a minimum, remand is required for the BIA to consider whether

Petitioner has sufficiently identified a cognizable PSG and new analysis of whether she met the

nexus requirements in light of A-R-C-G-. Paloka v. Holder, 762 F.3d 191, 197 (2d Cir. 2014).

Petitioner is also likely to succeed in her argument that the IJ erred in its nexus analysis

by ignoring Petitioner’s undisputed evidence supporting the gendered motive of her father’s

11 AR 31-36; 81-100; 145-56; 321-65; 415-23. 12 See Morrison v. INS, 166 F. Apex 583 (2d Cir. 2006) (reversing BIA’s denial of applicant’s motion to reconsider for failure to consider issues related to domestic violence claim in light of vacatur of R-A-). 13 For example, under A-R-C-G-, the BIA could find Petitioner to be a member of a PSG consisting of female family members “unable to escape.’. See A-R-C-G-, 26 I. & N. Dec. at 392. Given that configuration, the IJ’s conclusion that she was not persecuted because her father also abused her mother, grandmother and her father’s second wife would actually support, rather than undermine, Petitioner’s claim. AR 173-75.

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unrelenting abuse and cruelty. In its decision, the IJ largely disregarded direct evidence by

petitioner, her mother and grandmother regarding Mr. Vaskovsky’s hostility towards women and

reasons for rejecting and abusing Kateryna, and altogether ignored the corroborating country

conditions evidence of the prevalence and patterns in Ukraine of gender-based domestic violence

are supported by legal and cultural regarding male supremacy, and police ineffectiveness in

addressing it.14 ER 174-75. This is reversible error. See, e.g., Jorge-Tzoc, 435 F.3d at 149. 15

Finally, the IJ erred by misapplying the legal standard and misstating key testimony to

conclude Petitioner had not faced past persecution or did not have a future fear of persecution.

The IJ relied on her mother’s (ambiguous) testimony that her last contact with Mr. Vaskovsky

was in 2001 and that she returned to the Ukraine four times after they left the country to visit her

mother, and that Petitioner lived in Ukraine until 2005 “unharmed” after her mother left the

marital residence in 2005. AR 175-75. First, the IJ’s rationale is flatly contradicted by

Petitioner’s undisputed testimony that Mr. Vaskovsky’s continued his abuse until she left

Ukraine; her mother went to Ukraine with her new husband, and that Kateryna refused to

accompany them because she feared her father. ER 142-3, 231, 262, 271, 282, 393. Further, the

IJ’s finding Petitioner was “unharmed” after she was 5 by her father is directly contradicted by

controlling case law and petitioner’s detailed testimony and corroborating evidence, that she

faced past persecution in Ukraine in the form of repeated beatings, verbal abuse, including

intimidation and death threats against her throughout her life in Ukraine, that resulted in life long

14 AR 141-43; 228, 255-56, 279, 282-83, 293; 340-41; 363-67; 419-423. 15 The IJ’s reasoning that Petitioner failed to establish sufficient nexus because Mr. Vaskovsky also abused other female family members is legally flawed because evidence that the persecutor seeks to act out against other individuals who share the applicant’s protected characteristic can support an applicant’s claim that she was targeted on account of a protected characteristic. See also Garcia-Martinez v. Ashcroft, 371 F.3d 1066, 1076 (9th Cir 2004); 8 C.F.R. 208.13(b)(2)(i).

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post traumatic stress symptoms.16 Critically, the IJ also erred by not considering the fact that

Petitioner experienced persecution as a child, in contravention of this Court’s rule requiring

special consideration in assessing the past persecution and likelihood of future harm as

experienced by children, even if applying as adults, requiring a lower quantum of proof that

allows emotional harm can be the main, or even exclusive, component of persecutory harm.17

Thus, the record evidence of her constant fear and lifelong psychological effects of her father’s

brutality not only undermines the IJ’s reasoning, but demonstrate why she is likely to succeed in

her argument she suffered past persecution in Ukraine, warranting the presumption of future

persecution under 8 C.F.R. § 208.13(b) and establishes a likelihood of future fear of

persecution.1819

B. Petitioner is Likely to Succeed On Her Claim That the IJ Erred In Finding that Her Fourth Degree Possession Conviction Is a “Particularly Serious Crime” Disqualifying Her From Asylum and Withholding of Removal Under INA and CAT.

16 Petitioner’s abuse constitutes persecution, which this Court defines to include physical violence as well as “non-life-threatening violence and physical abuse or non-physical forms of harm such as the deliberate imposition of a substantial economic disadvantage.” Ivanishvili v. U.S. Dep't of Justice, 433 F.3d 332, 341 (2d Cir. 2006). See, e.g., Poradisova v. Gonzales, 420 F.3d 70 (2d Cir. 2005) (written and telephonic threats that result in fear of leaving house); Manzur v. DHS, 494 F.3d 281, 291 (2d Cir. 2007) (PTSD harm). 17See Jorge-Tzoc v. Gonzales, 435 F.3d 146, 15049 (2d Cir. 2006) (remanding case where the IJ failed to “take into account significant evidence and to address the harms [petitioner] and his family incurred cumulatively and from the perspective of a small child”); U.S. Dep't of Justice, Guidelines for Children's Asylum Claims, 1998 WL 34032561 (1998); Liu v. Ashcroft, 380 F.3d 307, 314 (7th Cir.2004); Hernandez–Ortiz v. Gonzales, 496 F.3d 1042 (9th Cir. 2007). 18 Petitioner further established that the government was unwilling to protect her through evidence of her mother and grandmother repeatedly sought protection from Mr. Vaskovsky in life threatening situations, but Ukrainian authorities refused to intervene; this was corroborated confirmed by DOS reports showing a pattern of police ineffectiveness in Ukraine in addressing widespread violence against female family members. Ivanishvili, 433 F.3d at 341. 19The IJ also committed reversible error by denying Kateryna statutory withholding because it impermissibly conflated the analysis with the asylum. Delgado, 508 F.3d at 708

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An individual is barred from asylum, statutory withholding and withholding under CAT

if “having been convicted of a particularly serious crime, [she] constitutes a danger to society.”20

The IJ found that her conviction for possession of a controlled substance in the fourth degree, for

which she served an eight-month sentence, constituted a particularly serious crime (“PSC”), and

the BIA affirmed. AR 15-17, 4. Petitioner is likely to succeed in her argument that the IJ erred

because it misapplied the correct legal standard and relied on inherently unreliable evidence.21

1. Misapplication of The Correct Legal Standard In its Analysis The statute and regulations provide two “per se” categories of crime that constitute a

particularly serious crime: certain aggravated felonies and non-aggravated felonies designated by

DHS/AG by regulation.22 Where the conviction does not fall into a “per se” category, the BIA

undertakes a four-part test for determining whether a conviction is a PSC, which requires

balancing “the nature of the conviction, the circumstances and underlying facts of the conviction,

the type of sentence imposed, and whether the type and circumstances of the crime indicate that

the alien will be a danger to the community.” See In Matter of Frentescu, 18 I. & N. Dec. 244,

247 (1982). Adjudicators are required to conduct an individualized review of any evidence that

rebuts a presumption that the conviction is for a particularly serious crime.23

First, the IJ and BIA erred by applying this standard correctly by failing to consider

whether Kateryna’s conviction made her a danger to society. 24 ER 4, 177-70. As the IJ

recognized, Petitioner’s conviction was not for an aggravated felony, ER 177, so Matter of

208 U.S.C. §1158(b)(2)(A)(ii). See also 8 U.S.C. § 1231(b)(3)(A) (asylum); 8 C.F.R. § 1208.16(d)(2) (CAT withholding). Note, criminal convictions, no matter how serious, are not a bar to deferral of removal under the Convention Against Torture. 8 C.F.R. § 1208.17(a). 21 Ahmetovic v. INS, 62 F.3d 48, 51 (2d Cir.1995). 22 See 8 U.S.C.A §§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii); 8 C.F.R. § 1208.16(c). 23 Bosede v. Mukasey, 512 F.3d 946, 950–51 (7th Cir. 2008). 24 See Ruqiang Yu v. Holder, 693 F.3d 294, 297-98 (2d Cir. 2012); Rizal v. Gonzales, 442 F.3d 84, 89 (2d Cir.2006); Yousefi v. I.N.S., 260 F.3d 318, 329 (4th Cir. 2001).

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Frentescu, applied, which requires consideration of “whether the type and circumstances of the

crime indicate that the alien will be a danger to the community.” Id. The agency’s failure to

assess Petitioner’s dangerousness also violates the plain language of the statute, and the Refugee

Convention which Congress’ intended the PSC bar to conform with. See I.N.S. v. Cardoza-

Fonseca, 480 U.S. 421, 436-37 (1987). The express terms of statute provide that the bar applies

if “the alien, having been convicted of a particularly serious crime, constitutes a danger to

society.”25 The IJ also contravened the Refugee Convention, which requires courts to make a

separate showing that an individual by analyzing whether the offense falls in a class of

exceptional and grave crimes.26 Thus, the IJ committed reversible error by failing to even

minimally analyze whether Petitioner’s Kateryna’s crime made her a danger to society.

Second, Petitioner is likely to succeed on her argument that the BIA erred by applying

the wrong standard to conclude Petitioners’ conviction was a PSC under Matter of Y–L–, A–G–,

and R–S–R–, 23 I. & N. Dec. 270 (A.G. 2002) disagreed with on other grounds, Zheng v.

Ashcroft, 332 F.3d 1186, 1196 (9th Cir. 2003). AR 4, 177-79. Bosede, 512 F.3d at 950. In Y–L–,

the Attorney General developed a presumption that aggravated felony drug trafficking

convictions resulting in a sentence of less than five years were “particularly serious crime[s].” 23

I. & N. Dec. at 274. While the IJ here acknowledged that case was not on point, AR 179, both he

and the BIA relied on Y-L-‘s presumption here in error, because as the IJ and BIA recognized,

Petitioner’s conviction was not an aggravated felony, but rather a “simple possession offense.”27

25 8 U.S.C. §1158(b)(2)(A)(ii). See also See 8 U.S.C. §1231(b)(3)(B)(ii); 8 C.F.R. § 1208.16(c). 26 See Ali v. Mukasey, 552 U.S. 1085 (2007); UNITED NATIONS HIGH COMM’N ON REFUGEES, Handbook on Procedures & Criteria for Determining Refugee Status, para. 155 (1992). 27 AR 4, 178-79. See Lavira v. Attorney Gen. of U.S., 478 F.3d 158, 164-66 (3d Cir. 2007) overruled on other grounds by Pierre v. Attorney Gen. of U.S., 528 F.3d 180 (3d Cir. 2008).

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Furthermore, even if the presumption did apply, the BIA committed reversible error because the

agency failed to assess whether Petitioner rebutted it.28

Finally, Petitioner’s case bears no resemblance to any of the three petitioners who were

denied relief in Matter of Y-L-., all of whom had multiple convictions for large-quantity felony

drug trafficking crimes classified as aggravated felonies.29 In contrast, Petitioner was convicted

of one simple possession charge, which involved a family member’s prescription drugs, and for

which she served an eight month sentence in a work camp, AR 223, 235-37, 315, 396. See, e.g.,

Lavira, 478 F.3d at 164-66. There was no suggestion of any analogous trafficking or conspiracy

in Kateryna's case, making Y-L inapposite. ER 237, 428.

2. Impermissible Reliance on on Evidence this Court has Deemed Unreliable Petitioner is also likely to succeed because the BIA’s relied almost entirely on evidence

this Court has found unreliable. In concluding that Petitioner’s conviction constituted a PSC, the

IJ and BIA impermissibly relied almost exclusively on facts from the narrative in Petitioner’s

charges and investigative report, AR 4, 177-79; 317-31, which this Court has held is reversible

error due to the “inherent unreliability” of such reports because they are based on “hearsay,

which may well be inaccurate.”30 The IJ also erred by relying on charges that Petitioner was not

convicted of31 and ignoring reliable evidence, such as Kateryna’s Uniform Sentence Report. Id;

28 AR 4-6; see Lavira, 478 F.3d at 165; Tunis, 447 F.3d at 549. 29 In Re Y-L, 23 I. & N. at 278 (respondents’ convictions were for cocaine trafficking and resisting an officer with violence; three felony counts involving large quantities of cocaine, two counts of distribution, and one count of conspiracy to distribute; and for multi-state conspiracy to produce and transport multi-kilogram quantities of cocaine). 30 Wassily v. Holder, 523 F. App'x 783, 785 (2d Cir.), as amended (May 3, 2013); Dickson v. Ashcroft, 346 F.3d 44, 54 (2d Cir. 2003). Of significance, Kateryna did not discuss her charges with the report author, and it was not signed by the Probation Supervisor. ER 321, 324. 31 Wassily, 523 F. App'x at 785 (reversing BIA’s determination that petitioner’s conviction constituted a PSC due to its exclusive reliance on investigative report); Yousefi, 260 F.3d at 35

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AR 315.32 Contrary to the BIA’s finding, there was no formal court finding there was a sale, for

what amount, who was involved nor any finding connecting Kateryna to organized crime.33 Thus

the BIA erred by relying on unreliable evidence and ignoring relevant record evidence.34

C. PETITIONER IS LIKELY TO SUCCEED ON HER CLAIM THAT THE IJ

COMMITTED REVERSIBLE ERROR IN FINDING HER BARRED FROM ASYLUM UNDER THE ONE YEAR BAR

While an application for asylum must be filed within one year, this deadline can be tolled

if an applicant establishes either changed or extraordinary circumstances sufficient to excuse the

late filing. 8 U.S.C. § 1158(a)(2)(B), (D). Petitioner argued that she was exempt under the

“extraordinary circumstance” exception involving a “[s]erious illness or mental or physical

disability, including any effects of persecution or violent harm suffered in the past, during the 1-

year period after arrival.” 8 C.F.R. § 208.4(a)(5)(i), her pending adjustment application and

changed circumstances in Ukraine. The IJ accepted that Petitioner suffered from depression, but

found her ineligible on the basis that her medical records allegedly found that she was

“diagnosed and treated” with depression only in 2007, following her back injury. AR 172-74.

The IJ committed reversible error by mischaracterizing and ignoring the record evidence on the

timing and impact of her condition, and by failing to assess her other claims.

First, the IJ and BIA erred by ignoring Petitioner’s undisputed testimony and record

evidence that her father’s repugnant abuse caused her to suffer lifelong debilitating depression,

(4th Cir. 2001) ("We can find no authority for the proposition that dismissed counts .. may be considered in determining whether a specific crime is a particularly serious one.”) 32 The “record of conviction” is statutorily defined as including, inter alia, the charging document, a plea agreement, a verdict or judgment of conviction, a record of the sentence, or a plea colloquy transcript.8 U.S.C. § 1229a(c)(3)(B)); 8 C.F.R. § 1003.41(a). 33 ER 294.The BIA also failed to consider was that she was selling her mother’s pain medication, her boyfriend role in setting up the charges, and there was no restitution order. 34 The PSC bar does not apply to deferral of removal under CAT. See 8 C.F.R. § 1208.17(a);

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anxiety and symptoms of Post Traumatic Stress Disorder (“PTSD”) from her childhood into her

life today. Petitioner testified that her father’s abuse caused her to suffer lifelong depression, fear

and anxiety that began in her childhood and got “worse and worse” as she grew up. AR 244-45,

251. Her mother and grandmother corroborated her testimony, providing detail on how her

father’s unrelenting abuse caused instability, mental anguish, depression and anxiety from

childhood into her life today that interfered with her functionality in school, life and adjustment

to adulthood. AR 142-43, 256-57; 265; 273. By ignoring her undisputed testimony and

corroborating evidence, the IJ committed reversible error. Ivanishvili, 433 F.3d at 342.35

Contrary to the IJ’s findings, Petitioner’s medical records from her weekly counseling

sessions with Elizabeth Fernandez, LMSW from February-July 2012 and periodic sessions with

Dr. Gina Perez (who she first met with in May 2012), support rather than undermine the serious

long-term psychological consequences of her father’s brutal behavior. AR 450-674. Throughout

the sessions, the clinicians observed Kateryna manifest a constellation of symptoms consistent

with depression and PTSD, including feelings of persistent sadness, nsomnia, “helplessness,”

“hopelessness,” “tremendous stress,” difficulty concentrating, and guilt. AR 551, 557; 566, 587,

599, 606. They first connected her symptoms to her father during her April 2, 2012 session,

when Kateryna first discussed the possibility of being deported in the context of her upcoming

court date.36 AR 521-22. She cried throughout that session, as she described how her father was

abusive, her fears about being deported, and that she wanted to kill herself. Id. As she confronted

the prospect of being removed in subsequent sessions (simultaneous to related court dates), she

35 The IJ also ignored evidence establishing her mother always protected her, helped her with day to day living, and handled all of her immigration matters with her step-father. AR 238, 264-65 36 Although the IJ was correct that at the outset of her treatment, Fernandez diagnosed Kateryna with depression linked to her 2007 accident and use of pain medication, Dr. Perez and Fernandez changed her diagnosis and attribution after this April 2012 meeting when she first described her father’s abuse and deep fears being removed to Ukraine. AR 518, 521-22.

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experienced deepened agitation, terror and suicidal ideation if returned to Ukraine, and

eventually new symptoms including auditory hallucinations, a persistent sense of helplessness

and hopelessness and nightmares every night. AR 536, 539, 543, 551, 555, 557-59. Concerned

about Kateryna’s potential for suicide if ordered deported, Gonzalez followed up with Dr. Perez,

AR 537, who met with Kateryna for the first time and connected her hallucinations to an

“anxiety response” and possible PTSD, upgraded her diagnosis to severe major depressive

disorder with psychosis and anxiety and prescribed her Trazadone, Abilify and Zoloft.37 AR 542-

545. Her clinicians concluded that the prospect of her removal to Ukraine was a central reasons

for her anxiety and depression, her fears of deportation was a dominant stressor and that she was

at risk of suicide and impaired judgment if deported.38

Given this evidence, the IJ and BIA erred by mischaracterizing39 and ignoring the full

medical records, and other record evidence regarding her debilitating symptoms of PTSD since

childhood,,40 their continued interference with her day to day life, and relationship to her

persecution, which indicate extraordinary circumstances affecting her ability to apply for asylum

37 While Dr. Perez characterized her father’s abuse as “abandonment” and noted she had little contact with him, this was her first session with Kateryna and they did not appear to discuss his abuse. AR 537. In contrast, Kateryna discussed her father’s abuse in depth with Gonzalez during their weekly sessions, but only after two months of treatment. AR 421. 38 AR 542-43, 551, 555-59, 566-67. She stopped taking her medication a few weeks later, and Dr. Perez found she was also at risk for worsening depression and hallucinations. AR 589. 39 AR 551; 555; 557-58; 564, 566, 587 599, 611, 631. 40 Kateryna’s symptoms are consistent with medical research finding that adult survivors of repeated trauma experience debilitating psychiatric symptoms long into adulthood. Andrea E. Bopp Stark, Posttraumatic Stress Disorder in Refugee Women: How to Address PTSD in Women Who Apply for Political Asylum Under Grounds of Gender-Specific Persecution, 11 Geo. Immigr. L.J. 167, 182 (1996). (PTSD involves “reexperiencing of the trauma .. [and] symptoms of instability, depression, and cognitive difficulties. A history of battering can cause trauma by producing fear and anger induced by violent abuse which perpetuates a growing feeling of entrapment, low self-esteem, and depression.”).

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in a timely manner and how they establish her eligibility for the exemption.41 Finally, the BIA

also erred by failing to evaluate Petitioner’s argument that changed circumstances in Ukraine and

her grandmother’s departure justify an exemption to the filing deadline.42

D. Petitioner is Likely to Succeed On Her Claim That The BIA Erred in Denying Her Application for Protection Under the Convention Against Torture

To qualify for withholding and deferral under CAT, an applicant must show that she is

more likely than not to be tortured if returned to her country. See C.F.R. § 1208.16(c)(2);

Delgado, 508 F.3d at 708. Torture is defined as the infliction of severe pain or suffering by, at

the instigation of, or with the consent or acquiescence of a public official. See 8 C.F.R. §

1208.18(a).43 The IJ denied Kateryna CAT relief on the ground that her father is a private actor

and that she did not and was unlikely to suffer torture for the same reasons it used to deny her

asylum claim: her mother’s return visits and her continued “abuse free” life in Ukraine until

2005. ER 179-180, 4-5. Petitioner is likely to succeed in her argument that the IJ and BIA either

grossly misapplied, or did not apply at all the applicable law and failed to consider material

evidence.

First the IJ erred in denying Petitioner deferral on the basis that she did not “demonstrate

that she had suffered torture in the past by or with the acquiescence of the government,” AR 180,

41 Munoz v. Holder, 407 Fed. App’x 185, 186 (9th Cir. 2010)); Barry v. Holder, 361 Fed. App’x 268, 269 (2d Cir. 2010); Mukamusoni v. Ashcroft, 390 F.3d 110, 117 (1st Cir. 2004). The IJ also erred by finding that Petitioner was ineligible because she was “diagnosed and treated [for depression] in approximately 2007,” AR 172 which is directly contradicted by her medical records from 2012. ER 543, 547. 42 AR 4, 11-13, 172, 283. Passi v. Mukasey, 535 F.3d 98 (2d Cir. 2008). In addition, the BIA failed to consider that Petitioner had a pending application for adjustment within a year before her application, which can be considered a stay authorized by the Attorney General. ER 289. See Asylum Officer Basic Training Course - One-Year Filing Deadline (Mar. 23, 2009), 19, available at http://www.uscis.gov/files/article/One-Year-Filing-Deadline.pdf 43 The BIA must consider all relevant evidence in deciding an applicants CAT claim, and where an applicant meets this burden, CAT relief is mandatory, not discretionary. 8 C.F.R. § 208.16(c)(4); Ramsameachire v. Ashcroft, 357 F.3d 169, 184 (2d Cir. 2004).

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or could not in the future. This Court has held that “acquiescence” to torture occurs whenever

“government officials know of or remain willfully blind to an act and thereafter breach their

legal responsibility to prevent it.” Khouzam v. Ashcroft, 361 F.3d 161, 171 (2d Cir. 2004).

Contrary to the IJ’s findings, Petitioner’s mother and grandmother testified that they contacted

local authorities on multiple occasions following Mr. Vaskvovsky’s abuse and death threats, and

each time, the police refused to provide any assistance in what they deemed a “family related”

affair, and could not investigate unless someone was killed. AR 180, 257-260, 393. The IJ failure

to consider this evidence and petitioners’ corroborating evidence44 is reversible error.45

Second, the IJ erred in finding Petitioner did not meet her burden regarding past or future

torture if returned to Ukraine by relying on the same flawed and unsupported reasoning it used to

find petitioner did not establish past persecution, thus the same reversible errors.46

IV. ABSENT A STAY OF REMOVAL, PETITIONER FACES IRREPERABLE HARM

Along with the likelihood of success on the merits, the irreparable injury inquiry is one of

44 The IJ and BIA relied on select facts a 2012 DOS report to support its holding, AR 334-82, but erred by ignoring critical evidence within the report and additional country reports altogether supporting the Ukrainian government’s acquiescence in widespread domestic violence in Ukraine. AR 31-36; 81-100; 145-56; 321-65; 415-23. In discussing 2012 DOS report, the IJ correctly noted that DOS found that spousal abuse was common and a high percentage of women experienced domestic physical or psychological abuse in Ukraine, but incorrectly concluded that Ukraine was adequately responding because it issued 78,600 warnings and 3,800 protective dv-related protective orders. AR 180-81. The IJ did not consider the Report’s finding that 90,600 individuals were administratively charged with DV and violating protective orders, and only received punishments of fines and community service—evidence supporting serious and widespread problem with enforcement mechanisms. The BIA’s selective read of the report is reversible error. Tambadou v. Gonzales, 446 F.3d 298, 302 (2d Cir. 2006). 45 Delgado, 508 F.3d at 708; Tambadou, 446 F.3d at 302. 46 Specifically, the IJ failed to consider Petitioner’s undisputed testimony and evidence regarding her father’s abuse in Ukraine, that she will be forced to live alone just a half mile from her father in her family home because she is unable to work, and the lasting psychological effect and resulting vulnerabilities of her father’s brutality if forced to return to Ukraine and how his incessantly violent and abusive behavior without adequate response from police, puts her at risk of severe abuse. See Poradisova v. Gonzales, 420 F.3d 70, 79-80 (2d Cir. 2005).

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“the most critical” factors in adjudicating stay applications. Nken, 556 U.S. at 433. Absent a

stay of removal, the Petitioner will suffer irreparable harm because forced return to a country

where she previously suffered persecution, has not lived since she was 17; subject her to further

persecution by her father; separate her from her U.S. citizen mother, step-father and husband,

who is in need of her care; adversely affect Petitioner’s mental and physical health by isolating

her from her community and much needed medical treatment; and leave her alone in a country

where she has never lived independently. Second, the Attorney General lacks the capability to

return Petitioner to the United States if she is deported and then prevails before this Court.

A. Forced Deportation Will Adversely Affect Petitioner’s Mental and Physical Health, Separate Her from Her U.S. Citizen Family, and Subject Her to Further Persecution by her Father. First, if deported, it is a near certainty that Kateryna will face continued persecution at the

hands of her father. Kateryna provided undisputed testimony, corroborated by record evidence,

that she was severely harmed by her father’s repugnant abuse, with no police protection, and that

she fears he resume his abuse with impunity if deported. AR 232, 238, 260-62, 272, 283, 393-94,

615.She has never lived in Ukraine without the protection of her mother, and has no family to

protect her. Id. Due to her inability to work, she will have to live in her family home in close

proximity to her father. Id. The continuation of such severe abuse plainly would constitute

irreparable harm, especially in light of the inadequate services for DV victims. ER 364-65.

Further, Petitioner’s mental and physical health puts her at greater risk of further

persecution and will suffer greatly if removed to the Ukraine, where she previously was unable

to get treatment and quality psychiatric care is limited. AR 142, 371. Kateryna suffers from

serious and debilitating depression, anxiety and PTSD symptoms, which has deeply affected her

functionality and was found to be at risk for worsening depression and hallucinations and suicide

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if deported to Ukraine. Her inability to receive adequate care constitutes irreparable harm. 47

Petitioner will also be forced to separate from her U.S. Citizen mother, step-father,

husband and extended family here in the United States. AR 232, 238, 265, 283, 393. Petitioner

and her mother enjoy a very close relationship and depend on each other emotionally and she has

grown very close to her step-father. Id. Kateryna also has a close relationship with her U.S.

citizen husband, Mr. Richard Decker, who relies on her due to his physical disability. Id.; AR

191-93. If removed to the Ukraine, Petitioner and her U.S. family members will be deprived of

family and emotional support48 throughout the pendency of this Court’s review of her petition

for review, an indeterminate period of time. In contrast to her strong and mutually supportive

relationships in the U.S., Kateryna has no ties in Ukraine aside from her father. AR 579.

B. DHS’ Return Policy Does Not Afford Petitioner Effective Relief If She Prevails on Her Petition for Review.

Petitioner also faces irreparable injury because she cannot ensure that the government

will facilitate her return to the United States in pre-removal status if the Court grants the instant

petition for review. This is because an effective return policy—one that consistently and

predictably returns immigrants who prevail on their petitions for review—does not exist. 49

V. THE ISSUANCE OF A STAY OF REMOVAL WILL NOT SUBSTANTIALLY INJURY THE GOVERNMENT, AND THE PUBLIC INTEREST LIES IN GRANTING PETITIONER’S REQUEST FOR A STAY

The Court in Nken found that the last two stay factors, injury to other parties in the

47 AR 142, 371, 518, 536-37, 543-44, 549, 630. Dr. Perez also found that Kateryna would have diminished judgment if deported, although she rated it good in terms of her future plans and goals if she is not deported. AR 544, 558, 568, 589. 48 Dr. Garcia found that her family and social support systems are critical for Kateryna to improve functioning and mental health problems ER 500, 615, 630. 49 ICE’s return policy only facilitates the return of persons who were previously lawful permanent residents or whose “presence is necessary for continued administrative removal proceedings,” and, then, only those who can afford to pay. ICE Policy Directive ¶¶ 2, 3.1.

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litigation and the public interest, merge in immigration cases because Respondent is both the

opposing litigant and the public interest representative. Nken, 556 U.S. at 435. The Court further

noted that the interest of Respondent and the public in the “prompt execution of removal orders”

is heightened where “the alien is particularly dangerous” or “has substantially prolonged his stay

by abusing the process provided to him.” Nken, 556 U.S. at 436 (citations omitted). Here,

neither of these factors nor any other factors exist to suggest that the Respondent or the public

have any interest in Petitioner’s removal beyond the general interest noted in Nken. Kateryna

has only been arrested once, and has otherwise been an upstanding member of her community,

described as a caring and kind person, who volunteered with the SPCA, worked part time, and

went to college. ER 143, 232-35, 243, 265, 544. Her single conviction did not involve violence,

she was sentenced to treatment designed for non-violent offenders. ER 189, 201, 429, 687.

Finally, the Nken Court also recognized the “public interest in preventing aliens from

being wrongfully removed,” which must weigh heavily in the Court’s consideration. See Nken,

556 U.S. at 436. Respondent cannot make any particularized showing that granting Petitioner a

stay of removal would substantially injure its interests or conflict with the public interest in

preventing a wrongful removal, such that the third and fourth Nken factors would outweigh the

hardship Petitioner would face if removed.

IV. CONCLUSION

For the foregoing reasons, Petitioner respectfully asks that this Court grant her a stay of

removal pending its adjudication of his petition for review.

Respectfully submitted this 27th day of December, 2014.

/s/ Anjana Malhotra

Anjana Malhotra Attorney for Petitioner