Sagaydak v. Gonzales ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VIKTOR YAROSLAVOVICH SAGAYDAK; 
NATALIYA BOGDANIVNA SAGAYDAK, No. 02-74299
Petitioners, Agency Nos.
v.  A77-424-463
ALBERTO GONZALES,* Attorney A77-424-462
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
May 6, 2004—Seattle, Washington
Filed May 4, 2005
Before: Procter Hug, Jr., A. Wallace Tashima, and
Richard A. Paez, Circuit Judges.
Opinion by Judge Paez;
Partial Concurrence and Partial Dissent by Judge Tashima
*Alberto Gonzales is substituted for his predecessor, John Ashcroft, as
Attorney General of the United States, pursuant to Fed. R. App. P.
43(c)(2).
4817
SAGAYDAK v. GONZALES 4821
COUNSEL
Tom Youngjohn, Federal Way, Washington, for the petition-
ers.
Leslie McKay, Washington, D.C., for the respondent.
OPINION
PAEZ, Circuit Judge:
To be eligible for asylum, an alien must, absent changed or
extraordinary circumstances, file an asylum application within
one year of arriving in the United States. 8 U.S.C.
§ 1158(a)(2). In the Illegal Immigration Reform and Immi-
grant Responsibility Act of 1996, Congress made clear that
“no court shall have jurisdiction to review any determination
of the Attorney General” with respect to whether the alien had
met the one-year deadline or had failed to satisfy this time
limit because of extraordinary circumstances. Pub.L. 104-208,
§ 604, 110 Stat. 3009-691 (1996) (codified at 8 U.S.C.
§ 1158(a)(3)); see also Hakeem v. INS, 273 F.3d 812, 815 (9th
Cir. 2001). However, in this case, we are confronted with an
unusual situation: The lead petitioner argued that his untimely
filing was due to extraordinary circumstances, but both the
Immigration Judge (“IJ”) and the Board of Immigration
Appeals (“BIA”) failed to address the issue. We hold that
when the Attorney General fails to make a “determination,”
this court has jurisdiction to grant the petition and remand the
case so that the agency charged with making this determina-
tion can properly do so.
4822 SAGAYDAK v. GONZALES
Both petitioners also argued that they were targeted by their
alleged persecutors on account of a protected ground. See 8
U.S.C. § 1101(a)(42)(A). The IJ disagreed, and the BIA sum-
marily affirmed. We find that substantial evidence does not
support the IJ’s conclusion that the petitioners were targeted
purely for personal punishment or revenge, rather than on the
basis of Viktor’s implied or actual political opinion, and we
remand for the BIA to determine whether the petitioners have
satisfied the remaining eligibility requirements for asylum, 8
U.S.C. § 1158, and withholding of removal, 8 U.S.C. § 1231.
I.
The petitioners in this case, Viktor and Nataliya Sagaydak,
are citizens of Ukraine. Before immigrating to the United
States, Viktor worked as a tax auditor for the Ukrainian gov-
ernment. During an audit of the Hidro Corporation (“Hidro”),
Viktor uncovered an illegal tax-evasion scheme. Viktor dis-
covered that Hidro, founded by a high-ranking government
official, had evaded the payment of automobile import duties.
When Viktor reported his findings to officials at Hidro, they
attempted to bribe Viktor to change his report. They first
offered him an envelope filled with valuable American dol-
lars, and after he refused, they offered a vacation to Germany.
Viktor refused both bribes and referred the matter to local
prosecutors.
Ten days later, two men forcibly removed Nataliya from a
bus and warned her that her husband “should be more agree-
able with us, because if he will not agree with us, we know
what we will do.” Nataliya suffered a miscarriage three days
after being assaulted, which she attributed to this incident.
Viktor also began receiving threats. Callers warned him to
change his report, and reminded Viktor of Nataliya’s abduc-
tion. A Hidro henchman also informed Viktor that “we will
make a powder out of you.”
SAGAYDAK v. GONZALES 4823
Fearing for his safety, Viktor arranged for his cousin to
drive him to work. While Viktor’s cousin was driving alone
in his car, equipped with tinted windows, he was shot. The
cousin was supposed to be chauffeuring Viktor at that time,
but Viktor had cancelled at the last moment. A Hidro thug
warned Viktor that “next time, we are not going to shoot your
brother, we will shoot you.”1
Viktor fled to the United States and arrived on September
17, 1997. After he had left Ukraine, the Sagaydaks’ apartment
was vandalized. Nataliya then joined Viktor in the United
States. Even though both had left the country, two men threat-
ened Viktor’s father after inquiring about Viktor’s where-
abouts. Members of Nataliya’s family were also involved in
a suspicious car accident that Nataliya suspects was caused by
Hidro officials.
Viktor filed for asylum on November 18, 1998, and
included Nataliya in his application. During the removal pro-
ceedings, the IJ noted that Viktor had failed to apply within
one year of arriving in the United States.2 The Sagaydaks’
attorney asked the IJ to consider the fact that Viktor had con-
tacted his prior attorney long before the one-year deadline
passed. The IJ responded that it was “not within his authority”
to take that fact into account because, the IJ explained, federal
law automatically precludes an alien from applying for asy-
lum after being in the United States for more than one year.
The IJ explicitly found Viktor’s testimony to be credible,
and did not comment on Nataliya’s credibility. We therefore
accept each of their testimony as true. See Mashiri v. Ash-
1
Viktor testified that the Ukrainian language does not distinguish the
words “brother” and “cousin,” and that this misstatement was simply an
error in translation.
2
Nataliya, on the other hand, arrived in the United States on February
13, 1998, and the IJ found that she was therefore eligible for asylum
despite the lead applicant’s ineligibility.
4824 SAGAYDAK v. GONZALES
croft, 383 F.3d 1112, 1119 (9th Cir. 2004); Kalubi v. Ash-
croft, 364 F.3d 1134, 1137 (9th Cir. 2004). The IJ nonetheless
denied the Sagaydaks’ applications for asylum, as well as
their applications for withholding of removal under 8 U.S.C.
§ 1231(b)(3) and relief under the Convention Against Torture
(“CAT”), 8 C.F.R. § 208.16(c). The IJ held that Viktor was
“ineligible for asylum since he arrived in the United States on
September 17, 1997, and did not apply for asylum until
November 18, 1998, more than one year after his arrival.”
The IJ did not, however, address Viktor’s argument that
extraordinary circumstances had caused the delay. With
respect to Nataliya, the IJ determined that she had filed within
the one-year bar, and therefore considered the merits of her
asylum application.
In addressing Viktor’s claim for withholding of removal
and Nataliya’s claims for asylum and withholding, the IJ
determined that the Sagaydaks failed to establish that they
would be persecuted on account of a protected category. The
IJ specifically rejected the Sagaydaks’ contention that Ukrai-
nian tax auditors constitute a bona fide social group. More-
over, the IJ reasoned that the Sagaydaks were facing harm
because Viktor was involved in the prosecution of corrupt
officials, not because of Viktor’s membership in a protected
class. Thus, the IJ ruled that “in the case of [Nataliya], there
is not a well-founded fear of persecution based upon one of
the five grounds, and for both respondents, there is not a clear
probability of persecution based upon one of the five grounds
that they will be persecuted if they return to the Ukraine.”
Additionally, the IJ found both petitioners ineligible for CAT
relief because their persecutors were private citizens, not gov-
ernment officials.
The Sagaydaks appealed to the BIA, arguing in part that the
IJ erred by failing to determine whether Viktor had qualified
for the extraordinary-circumstances exception to the one-year
time bar. The BIA affirmed the IJ’s decision without opinion
SAGAYDAK v. GONZALES 4825
on November 18, 2002. The Sagaydaks filed their timely peti-
tion for review on December 16, 2002.3
II.
Viktor contends that the IJ erred by not determining
whether Viktor’s failure to meet the one-year time bar was
attributable to exceptional circumstances. We agree.
A.
[1] We first consider whether we have jurisdiction to
review this challenge to the IJ’s ruling.4 Normally, this court
cannot consider a petitioner’s claim that exceptional circum-
stances should excuse his late filing. See Hakeem, 273 F.3d
at 815. This is true because, under 8 U.S.C. § 1158(a)(3), we
lack “jurisdiction to review any determination of the Attorney
General under paragraph (2) [of 8 U.S.C. § 1158(a)].” Para-
graph (2) of § 1158(a) contains two separate provisions: the
one-year filing deadline contained in subparagraph (B),5 and
the extraordinary-circumstances exception to the one-year fil-
ing deadline contained in subparagraph (D).6 Thus, we cannot
3
The same day that the petition for review was filed, the Sagaydaks also
filed a motion to reopen with the BIA. The BIA denied the motion on
March 10, 2003. The petitioners did not file an amended petition for
review to incorporate the BIA’s denial of the motion to reopen. Accord-
ingly, the BIA’s denial of the motion to reopen is not before us here.
4
We, of course, have jurisdiction to determine whether we have jurisdic-
tion. Aragon-Ayon v. INS, 206 F.3d 847, 849 (9th Cir. 2000).
5
Subparagraph (B) provides in full: “Subject to subparagraph (D), para-
graph (1) shall not apply to an alien unless the alien demonstrates by clear
and convincing evidence that the application has been filed within 1 year
after the date of the alien’s arrival in the United States.” 8 U.S.C.
§ 1158(a)(2)(B).
6
Subparagraph (D) provides in full:
An application for asylum of an alien may be considered, not-
withstanding subparagraphs (B) and (C), if the alien demonstrates
4826 SAGAYDAK v. GONZALES
review the IJ or BIA’s determination that an alien failed to
apply within one year of arriving in the United States or a
determination that the delay in filing was not caused by
extraordinary circumstances.
[2] But what if, as occurred in Viktor’s case, an IJ makes
no determination, even though the issue was raised by the
petitioner? Although the IJ made a determination that Viktor
had applied more than one year after arriving in the United
States, the IJ did not consider, much less determine, whether
Viktor’s failure to meet the one-year time bar was caused by
extraordinary circumstances. The IJ’s only statement with
respect to Viktor’s asylum application was that “[t]he Court
finds that the male respondent is ineligible for asylum since
he arrived in the United States on September 17, 1997, and
did not apply for asylum until November 18, 1998, more than
one year after his arrival. Section 208(a)(2)(B); 8 C.F.R.
208.4(a)(2).” Both the IJ’s words and his citations refer spe-
cifically to the one-year time bar; they do not address the
extraordinary-circumstances exception.
[3] Had the IJ merely erred in making a determination
under subparagraph (D), we would lack jurisdiction. 8 U.S.C.
§ 1158(a)(3). Here, however, the IJ’s error was that he did not
make “any determination” at all. The jurisdiction-stripping
provision contained in § 1158(a)(3) only precludes us from
reviewing “any determination” with respect to the
extraordinary-circumstances exception. In light of the fact that
the IJ failed to make “any determination,” even though the
extraordinary-circumstances issue was raised by Viktor’s
to the satisfaction of the Attorney General either the existence of
changed circumstances which materially affect the applicant’s
eligibility for asylum or extraordinary circumstances relating to
the delay in filing an application within the period specified in
subparagraph (B).
8 U.S.C. § 1158(a)(2)(D).
SAGAYDAK v. GONZALES 4827
attorney, we conclude that § 1158(a)(3) does not apply in this
case. Quite simply, we are not reviewing a “determination,”
but the failure to make a determination. Thus, we hold that
when, as occurred here, a petitioner alleges that his failure to
file a timely asylum application was due to extraordinary cir-
cumstances and both the IJ and the BIA fail to determine
whether the extraordinary-circumstances exception should
apply, we have jurisdiction to review the failure to make a
determination.
B.
[4] We next consider whether it was error for the IJ not to
determine whether Viktor’s late filing was due to extraordi-
nary circumstances. We think it goes without saying that IJs
and the BIA are not free to ignore arguments raised by a peti-
tioner. See Chen v. Ashcroft, 362 F.3d 611, 620 (9th Cir.
2004) (holding that “the IJ erred by failing to consider” an
explanation offered by the petitioner for her brother’s failure
to appear and testify on her behalf). Immigration judges,
although given significant discretion, “cannot reach their deci-
sions capriciously” and “must indicate ‘how [they] weighed
the factors involved’ and ‘how [they] arrived at [their] conclu-
sion.’ ” Yepes-Prado v. INS, 10 F.3d 1363, 1370 (9th Cir.
1993) (quoting Dragon v. INS, 748 F.2d 1304, 1307 (9th Cir.
1984)). Furthermore, it has long been held that the BIA’s
“failure to exercise its own discretion, contrary to existing
regulations” is reversible error. United States ex rel. Accardi
v. Shaughnessy, 347 U.S. 260, 268 (1954).
[5] Although the BIA effectively ignored the issue of
whether the extraordinary-circumstances exception should
apply in Viktor’s case, the IJ was apparently not even aware
of this exception. During the removal hearing, Viktor’s attor-
ney attempted to submit evidence that the delay in filing the
application was caused by Viktor’s prior attorney’s ineffec-
tive assistance. The IJ, however, interrupted the attorney and
said:
4828 SAGAYDAK v. GONZALES
Well, the only thing that is going to make me change
my ruling is if you show me an application that was
submitted before—
MR. YOUNGJOHN TO JUDGE:
I wouldn’t be able to do that, Your Honor.
JUDGE TO MR. YOUNGJOHN:
Because, as I say, you can’t get around clear lan-
guage of the law . . . . I’m just trying to find the sec-
tion on time limit. Let’s see, the alien must
demonstrate by clear and convincing evidence that
the application was filed within one year after the
date of the alien’s arrival in the United States. So
application filed, that would not mean beginning
preparations or whatever.
MR. YOUNGJOHN TO JUDGE:
Please, for the record, can I—
JUDGE TO MR. YOUNGJOHN:
You can submit anything you want, Mr. Youngjohn.
I just want you to know that I don’t have—it’s not
within my authority, even if I wanted to do it—
MR. YOUNGJOHN TO JUDGE:
Yes, sir.
JUDGE TO MR. YOUNGJOHN:
— if I decide, you know, in this case, I think I’m
going to do that, I would be reversed by the Board
of Immigration Appeals.
SAGAYDAK v. GONZALES 4829
MR. YOUNGJOHN TO JUDGE:
Yes, Your Honor.
As this colloquy demonstrates, the IJ believed that the one-
year deadline was absolute and not subject to any exception.
Under the IJ’s understanding of the statute, so long as Viktor
applied for asylum more than a year after his arrival in the
United States, the IJ had no “authority” to find Viktor eligible
for asylum. Indeed, the IJ was concerned that if he found an
exception to the one-year time bar, he would be reversed by
the BIA.
[6] The IJ’s understanding of the INA was plainly contrary
to both the statute’s and the regulation’s obvious meaning.
Under 8 U.S.C. § 1158(a)(2)(D), the one-year time bar does
not apply “if the alien demonstrates to the satisfaction of the
Attorney General . . . the existence of . . . extraordinary cir-
cumstances relating to the delay in filing an application.”
Additionally, the agency’s own regulation provides that
extraordinary circumstances can excuse an alien’s failure to
satisfy the one-year time bar, and the regulation specifically
recognizes that ineffective assistance of counsel, the basis of
Viktor’s extraordinary-circumstances claim, can qualify as an
extraordinary circumstance. 8 C.F.R. § 208.4. Neither the stat-
ute nor the regulation is ambiguous, and neither could be
interpreted any other way than including an extraordinary-
circumstances exception. The IJ erred as a matter of law, and
we therefore remand Viktor’s asylum claim to the BIA, or, if
it deems appropriate, to the IJ, for further proceedings.7
7
In addition to the extraordinary-circumstances exception contained in
the statute, Viktor also contends that the one-year time bar should be sub-
ject to equitable tolling. We need not decide whether the equitable tolling
doctrine applies to the one-year time bar on asylum applications. The reg-
ulations specify that the extraordinary-circumstances exception includes
claims based on ineffective assistance of counsel. 8 C.F.R. § 208.4. Thus,
although a statute can also be equitably tolled on the basis of ineffective
4830 SAGAYDAK v. GONZALES
III.
The IJ denied Viktor’s claim for withholding of removal
and Nataliya’s claims for asylum and withholding of removal
on the basis that Viktor did not establish that the Hidro hench-
men “wish[ed] to harm him due to his race, his religion, his
nationality, his membership in a particular social group, or his
political opinion.” See 8 U.S.C. § 1101(a)(42)(A). The Sagay-
daks challenge this determination.8 We review for substantial
assistance of counsel, see Socop-Gonzalez v. INS, 272 F.3d 1176, 1193
(9th Cir. 2001) (en banc), the availability of relief for Viktor under the
extraordinary-circumstances exception makes it unnecessary for us to
decide whether the equitable tolling doctrine is applicable here. See
Rodriguez-Lariz v. INS, 282 F.3d 1218, 1226 n.5 (9th Cir. 2002) (declin-
ing to address whether a regulatory exception for “exceptional circum-
stances” should apply because the petitioner’s arguments were the same
arguments that supported the equitable tolling claim that the court had
already considered).
Indeed, we suspect that the requirements for satisfying the
extraordinary-circumstances exception are identical to the showing neces-
sary to equitably toll a statute of limitations. See United States v. Battles,
362 F.3d 1195, 1197 (9th Cir. 2004) (explaining in the context of the one
year statute of limitation on filing a habeas corpus petition that a petitioner
must demonstrate that extraordinary circumstances prevented the timely
filing of a petition in order to have the statute of limitation equitably
tolled); Socop-Gonzalez, 272 F.3d at 1193 (stating in the context of filing
deadlines for motions to reopen deportation proceedings that “the party
invoking tolling need only show that his or her ignorance of the limitations
period was caused by circumstances beyond the party’s control, and that
these circumstances go beyond a garden variety claim of excusable
neglect.” (internal citations and quotations omitted)).
8
The Sagaydaks also contend that the BIA erred by failing to recognize
that persecution can be inflicted by non-governmental actors. In denying
the Sagaydaks’ CAT claim, the IJ did find that any harm would come from
Hidro officials, not from government officials. Because “torture” is
defined as “pain or suffering . . . inflicted by or at the instigation of or with
the consent or acquiescence of a public official or other person acting in
an official capacity,” 8 C.F.R. § 208.18(a)(1), this was a proper ground for
denying CAT relief. The IJ did not, however, deny Nataliya’s claim for
asylum under 8 U.S.C. § 1158 or the Sagaydaks’ claims for withholding
of removal under 8 U.S.C. § 1231(b)(3) on the basis that their persecutors
were not government officials.
SAGAYDAK v. GONZALES 4831
evidence, see Ochave v. INS, 254 F.3d 859, 865 (9th Cir.
2001), and we conclude that the IJ’s finding did not meet this
standard.9
[7] To establish a nexus to the political opinion ground, the
Sagaydaks must show (1) that Viktor had either an affirmative
or imputed political opinion,10 and (2) that they were targeted
on account of that opinion. See Njuguna v. Ashcroft, 374 F.3d
765, 770 (9th Cir. 2004) (“He must establish that the political
opinion would motivate his potential persecutors.”). Viktor’s
status as a government employee clearly suffices to show an
imputed political opinion under our case law. We have stated
that we consider “persecution of those who work for or with
political figures to be on account of the political opinion of
their employer even if the nature of their work . . . is not in
itself political.” Navas v. INS, 217 F.3d 646, 659 n.19 (9th
Cir. 2000). Viktor was aligned with the political opinion of
his employer simply by the fact that he worked as a govern-
ment official enforcing government policies. See Aguilera-
Cota v. INS, 914 F.2d 1375, 1380 (9th Cir. 1990)
(“[Petitioner]’s status as a government employee caused the
opponents of the government to classify him as a person
‘guilty’ of a political opinion.”).
9
Initially, we reject the Sagaydaks’ contention that the IJ failed to con-
sider whether they were persecuted on account of Viktor’s political opin-
ion. While the IJ did not analyze the political-opinion category as
thoroughly as he analyzed the social-group category, the IJ explicitly
stated that the corrupt Hidro Corporation officials “do not wish to harm
[Viktor] due to his race, his religion, his nationality, his membership in a
particular social group, or his political opinion. They simply want to
coerce him not to testify against them” (emphasis added). Thus, the IJ con-
sidered, but rejected, the Sagaydaks’ claim that they were facing persecu-
tion on account of Viktor’s political opinion.
10
“Under our case law, and unchanged by Elias-Zacarias, an applicant
can establish his political opinion on the basis of his own affirmative polit-
ical views, his political neutrality, or a political opinion imputed to him by
his persecutors.” Sangha v. INS, 103 F.3d 1482, 1488 (9th Cir. 1997) (cit-
ing INS v. Elias-Zacarias, 502 U.S. 478 (1992)).
4832 SAGAYDAK v. GONZALES
[8] Viktor also has established that his troubles with Hidro
arose on account of that actual or imputed political opinion.
Our cases make clear that a victim who is targeted for expos-
ing government corruption is persecuted “on account of”
political opinion. Retaliation for investigating or publicizing
corruption by political figures is by its very nature a political
act. Reyes-Guerrero v. INS, 192 F.3d 1241, 1245 (9th Cir.
1999) (holding that persecution was on account of political
opinion because petitioner’s prosecutorial investigation into
acts of political corruption “was, by its very nature, politi-
cal”). We have held, for example, that “retaliation for the act
of publicizing corruption amounts to persecution on account
of a political opinion” even when the petitioner “did not
espouse a political theory.” Hasan v. Ashcroft, 380 F.3d 1114,
1120 (9th Cir. 2004); see also Njugana, 374 F.3d at 770-71;
Grava v. INS, 205 F.3d 1177, 1181 (9th Cir. 2000) (holding
that nexus existed where government employee exposed cor-
ruption of his supervisors).
[9] These cases also require that the corruption being
exposed have far-reaching roots. In Hasan, for example, the
“institutionalized level of corruption” in the local political
leadership that the petitioner uncovered and reported went
“far beyond an individual, anomalous case.” 380 F.3d at
1120. Citing Grava, we pointed out that “ ‘retaliation com-
pletely untethered to a governmental system does not afford
a basis for asylum.’ ” Id. at 1121 (quoting 205 F.3d at 1181
n.3). We have therefore refused to recognize a nexus to politi-
cal opinion where the alleged persecution occurred only as a
result of personal animosity, rather than “a difference of polit-
ical philosophies.” Zayas-Marini v. INS, 785 F.2d 801, 806
(9th Cir. 1986); see also Kozulin v. INS, 218 F.3d 1112, 1117
(9th Cir. 2000) (stating that in the face of a crew member’s
accusation that a ship’s captain stole provisions, “[t]he cap-
tain’s endeavors to maintain order within his questionable
enterprise, however unpalatable, do not constitute persecution
on account of political opinion”).
SAGAYDAK v. GONZALES 4833
[10] Viktor’s audit was slightly different in that it uncov-
ered corruption within a private organization, not a govern-
ment institution. Thus, Viktor’s refusal to accept Hidro’s
bribes and abdicate his duty to testify was not a stance critical
of any particular political figure or party. Cf. Njuguna, 374
F.3d at 770-71. Nonetheless, it implicated the foundations of
Ukrainian government and was undeniably a political state-
ment in the context of the country’s evolving politics. At the
time the Sagaydaks’ troubles arose, Ukraine was struggling
with its transition to a fledgling free-market economy. The
State Department reported that the country’s economy “suf-
fered greatly” with this transition following the collapse of the
Soviet Union in 1991. Corruption was rampant throughout the
government, and organized criminals grew accustomed to
influencing witnesses through both bribery and intimidation.
See United States Department of State, Ukraine—Profile of
Asylum Claims and Country Conditions 2 (June 1997) (here-
inafter “Profile of Asylum Claims”).
In 1994, a new president, Leonid Kuchma, was elected.
According to the CIA’s World Factbook, “Kuchma has
pushed economic reforms, maintained financial discipline,
and tried to remove almost all remaining controls over prices
and foreign trade.” These changes to Ukraine’s economic sys-
tem were, of course, politically charged, and they faced strong
resistance in Parliament. As part of his reforms, Kuchma
made substantial efforts to uncover organized crime, a policy
that he implemented through the Tax Inspectorate where Vik-
tor worked.11 Viktor testified at his removal hearing that in
1994, the same year of Kuchma’s election, Viktor took a new
oath of office “that I . . . will be serving my country, do the
11
The Tax Inspectorate was apparently a highly politicized agency.
According to the State Department, “[n]umerous sources charge that the
administration has used government agencies, particularly the Tax Inspec-
torate, to pressure the opposition media and businesses supporting its
political opponents.” Bureau of Democracy, Human Rights, and Labor,
United States Department of State, 1999 Country Reports on Human
Rights Practices: Ukraine 15 (Feb. 25, 2000).
4834 SAGAYDAK v. GONZALES
work on behalf of my country, and will be building a new
country.” According to Viktor’s declaration, his task was to
uncover “wrong and illegal use of state financial resources[,
which] is one of [the] negative consequences of a ‘socialist’
method of conducting a national economy . . . .” Viktor’s
work was therefore deeply tied to the new political and eco-
nomic reforms.
These changes meant the end of “businesses” like Hidro.
Hidro had been closely tied to the former communist govern-
ment, and was founded by a prominent member of that former
government who continued to hold a government post at the
time of Viktor’s audit. As Viktor put it, “[t]he founder was
tied to the current government, in the same way that most
organized crime in the Ukraine has government ties.” Consis-
tent with the State Department’s assessment, Viktor testified
that bribery of government officials was a problem in
Ukraine. Moreover, “if somebody has connections and . . . has
a position in the government, they can create such an institu-
tion or company or private business like Hidro, which will
provide the activity against the law. . . .” The new policies in
the Ukraine, which from Hidro’s perspective, Viktor repre-
sented, signaled the end of that system.
By adhering to the new government policies and refusing
Hidro’s bribes, Viktor took a political stance in opposition to
the corrupt government practices that allowed Hidro to exist.
Just like the petitioner in Aguilera-Cota, Viktor “was specifi-
cally threatened because of his perceived adherence to the
government’s cause.” 914 F.2d at 1379. Viktor was part of a
new guard within the Ukrainian government that refused to
succumb to the old system of corruption and acquiescence
that allowed companies like Hidro to operate. The State
Department reports make clear that Hidro’s scheme was part
of the pervasive structure of Ukrainian politics. In Grava, we
pointed out that “the salient question is whether Grava’s
actions were directed toward a governing institution, or only
against individuals whose corruption was aberrational.” 205
SAGAYDAK v. GONZALES 4835
F.3d at 1181. Because “[c]orruption among governmental
officials at all levels remain[ed] a serious problem” in
Ukraine, Profile of Asylum Claims at 2, Viktor’s refusal to
accede to Hidro’s bribery, in the context of Ukrainian politics,
was a political statement.
We analyzed a similar situation in Desir v. Ilchert, 840
F.2d 723 (9th Cir. 1988). There, Desir refused to accede to
extortion by low-level members of Haiti’s ruling “kleptocra-
cy,” the Macoutes, who demanded protection money for their
own personal use. Id. at 725. We concluded that Desir’s
refusal to make “contributions” was a political statement
because, in that context, “[t]o challenge the extortion by
which the [Haitian security forces] exist is to challenge the
underpinnings of the political system.” Id. at 727. Similarly,
Viktor’s actions challenged the political system of corruption
by which Hidro existed and which Hidro sought to maintain
through threats and bribes.
The IJ concluded that the Hidro officials were motivated to
prevent Viktor’s testimony, to preserve their own economic
interests, and to punish Viktor “or to take revenge against
him.” Even assuming this conclusion was correct, it does not
undermine Viktor’s claim that he was persecuted on account
of a protected ground. The requirement that persecution be
“on account of” political opinion “does not mean persecution
solely on account of the victim’s political opinion. That is, the
conclusion that a cause of persecution is economic does not
necessarily imply that there cannot exist other causes of the
persecution.” Borja v. INS, 175 F.3d 732, 735 (9th Cir. 1999)
(en banc) (quotation marks omitted; emphasis in original).
[11] That the Hidro officials may have been motivated in
part by personal retribution does not mean that they did not
also see Viktor as their political enemy. We recognize that
“many persecutors have mixed motives. In such instances,
personal retaliation against a vocal political opponent does not
render the opposition any less political, or the opponent any
4836 SAGAYDAK v. GONZALES
less deserving of asylum.” Grava, 205 F.3d at 1181 n.3.
Moreover, we have recognized that such motives can indeed
be political. In Desir, for example, the Macoutes would have
kept the money they sought to extort for their individual gain.
Desir’s refusal to pay nonetheless had a political impact
because it threatened “the intimidation and fear . . . engen-
dered” by their extortion, which “accrued to the benefit of the
[Haitian] regime.” 840 F.2d at 728. The Sagaydaks’ troubles
arose at least in part because of the political opinion imputed
to Viktor. He therefore has shown that he was persecuted on
account of a protected ground.12
IV.
In sum, the IJ erred by failing to determine whether Vik-
tor’s late filing was caused by extraordinary circumstances.
Further, the IJ’s determination that the Sagaydaks were not
targeted on account of a protected ground was not supported
by substantial evidence. However, because substantial evi-
dence supports the IJ’s determination that the Sagaydaks were
not entitled to relief under CAT, see supra at 4830 n.8, we
deny the petition as to that claim. Thus, we grant the petition
for review in part and remand so that the BIA may determine
whether extraordinary circumstances exist that would excuse
Viktor’s failure to apply for asylum within one year of arriv-
ing in the United States, and whether the Sagaydaks have sat-
isfied the remaining requirements for asylum and withholding
of removal.13 See INS v. Ventura, 537 U.S. 12, 16 (2002).
12
Because we conclude that Viktor’s trouble arose on account of his
political opinion, we need not address his alternative argument that he was
targeted on account of his membership in the “particular social group” of
honest tax auditors.
13
The Sagaydaks claim that the IJ’s decision was not appropriate for the
BIA’s streamlining process because the IJ’s decision was incorrect, the
errors in the decision were material, and the legal issues raised were sub-
stantial. See 8 C.F.R. § 1003.1(e)(4)(I). Because we grant the petition for
review, this argument is moot. See Vukmirovic v. Ashcroft, 362 F.3d 1247,
1253 (9th Cir. 2004).
SAGAYDAK v. GONZALES 4837
PETITION GRANTED in part, DENIED in part, and
REMANDED.
TASHIMA, Circuit Judge, concurring in part and dissenting
in part:
The Illegal Immigration Reform and Immigrant Responsi-
bility Act of 1996, § 604, provides that “no court shall have
jurisdiction to review any determination of the Attorney Gen-
eral under paragraph (2)” that an alien’s application for asy-
lum is untimely.1 8 U.S.C. § 1158(a)(3) (emphasis added).
Because the majority’s reading of the statute impermissibly
narrows the plain meaning of “any determination” to exclude
some determinations, I respectfully dissent from its assuming
jurisdiction and reviewing petitioner Viktor Sagaydak’s claim
that his asylum application is not time-barred.
Here, the IJ found “that the male respondent is ineligible
for asylum since he . . . did not apply for asylum until . . .
more than one year after his arrival.” (Citing § 1158(a)(2)(B)
and 8 C.F.R. § 208.4(a)(2).) Because the IJ also mistakenly
“believed that the one-year deadline was absolute and not
subject to any exception,” Maj. op. at 4829, he did not go on
expressly to rule on Viktor’s contention that the extraordinary
circumstances exception of § 1158(a)(2)(D) applied to his
case. On this basis, the majority holds “that the IJ failed to
make ‘any determination,’ even though the extraordinary-
circumstances issue was raised by Viktor’s attorney,” and
concludes, therefore, “that § 1158(a)(3) does not apply to this
case.” Maj. op. at 4827. It holds that the IJ’s failure expressly
1
There are two elements to the timeliness requirement. First, there is the
requirement that an asylum application be filed within one year of the
alien’s arrival in the United States. 8 U.S.C. § 1158(a)(2)(B). There is also
a “changed circumstances” and “extraordinary circumstances” exception
which permits tolling the one-year period. 8 U.S.C. § 1158(a)(2)(D).
4838 SAGAYDAK v. GONZALES
to address the extraordinary circumstances tolling provision
was a failure to make any determination under § 1158(a)(2);
therefore, that review is not barred. I disagree.
We have already held that in deciding whether § 1158(a)(3)
applies, “we need only determine whether the IJ acted under
section 1158(a)(2).” Hakeem v. INS, 273 F.3d 812, 815 (9th
Cir. 2001). And in this case, it is clear that the IJ did so act.
The only requirement is that the IJ act under § 1158(a)(2); not
that he act under every, or any particular, subdivision of
§ 1158(a)(2). Here, the IJ expressly determined that Viktor
was “ineligible for asylum” under the one-year bar of
§ 1158(a)(2)(B). That he was mistaken in his application of
§ 1158(a)(2), in believing that no tolling was available, does
not mean that he did not act under § 1158(a)(2) in holding that
Viktor’s petition was barred by the one-year provision.
In effect, the majority is reviewing the merits of the IJ’s
time-bar ruling. It holds, in substance, that the IJ erred in his
determination that no tolling was available and remands on
that issue and directs the agency to make a redetermination of
that issue. I agree with the majority that “[n]either the statute
nor the regulation is ambiguous, and neither could be inter-
preted any other way than including an extraordinary-
circumstances exception. The IJ erred as a matter of law. . . .”
Maj. op. at 4829. But the fact that the IJ “erred as a matter of
law” in applying the one-year time-bar means that he made an
erroneous determination, not that he did not make “any deter-
mination” at all. I therefore respectfully dissent from Part II
of the majority opinion.
I do, however, fully concur in Part III of the majority opin-
ion, and in the remainder of the opinion insofar as it pertains
to Nataliya Sagaydak’s claim for asylum and to the Sagay-
daks’ claims for withholding of removal.