Myron Kukalo v. Eric Holder, Jr.
2011 U.S. App. LEXIS 10339
6th Cir.2011Background
- Kukalos are Ukrainian husband and wife who entered the US on February 10, 1994 on B-1 visas and overstayed.
- Myron filed a timely asylum application in 1994; DHS later referred their case to the Immigration Court in 2004.
- An I-140 for Myron from Piper Plumbing was approved in 2007, indicating intent to seek adjustment of status; I-485s were filed thereafter.
- An IJ in 2007 found Myron credible but determined no past persecution or well-founded fear; threats and extortion were deemed insufficient and not targeted.
- BIA denied the appeal in 2009, rejecting past persecution, finding no asylum eligibility, and thus denying withholding of removal and CAT relief; noted the claim was not meaningfully appealed for withholding/CAT.
- In 2009, the BIA also denied a motion to reopen to seek adjustment of status, ruling Kukalos failed to show prima facie eligibility due to status violations and timing under INA 245.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Kukalos proved asylum on past persecution or well-founded fear | Kukalos contends threats and extortion show persecution tied to political beliefs. | BIA found no past persecution or well-founded fear; incidents were isolated, non-targeted, and not sufficiently severe. | Affirmed BIA; no past persecution or well-founded fear found. |
| Whether Kukalos qualify for withholding of removal or CAT relief | Relief should follow from asylum denial given the same evidence of threats and danger in Ukraine. | Without asylum, the more stringent burdens for withholding or CAT are not met. | Denied; withholding and CAT claims not established. |
| Whether the BIA properly denied the motion to reopen for adjustment of status | Pending asylum equates to a technical violation under 245(c)(2) or the 245(k) exception, allowing adjustment. | Kukalos failed to maintain status; L-K- limited; 180-day requirement not met; BIA did not abuse its discretion. | Denied; Kukalos failed to establish prima facie eligibility for adjustment under 245(a). |
Key Cases Cited
- Haider v. Holder, 595 F.3d 276 (6th Cir. 2010) (persecution must rise above harassment; contextual assessment required)
- Gilaj v. Gonzales, 408 F.3d 275 (6th Cir. 2005) (persecution requires more than isolated harassment)
- Pilica v. Ashcroft, 388 F.3d 941 (6th Cir. 2004) (well-founded fear standard components and burden)
- Mikhailevitch v. INS, 146 F.3d 384 (6th Cir. 1998) (persecution requires more than mere harassment)
- Elias-Zacarias v. I.N.S., 502 U.S. 478 (1992) (framework for asylum review and standard of review)
- Koliada v. I.N.S., 259 F.3d 486 (6th Cir. 2001) (definition of refugee and burden for asylum)
- In re L-K-, 23 I. & N. Dec. 677 (BIA 2004) (asylum pendency can affect status for 245(c)(2) technical violations)
- Alania-Martin, 25 I. & N. Dec. 231 (BIA 2010) (discussion of 245(k) related eligibility)
- Denko v. I.N.S., 351 F.3d 717 (6th Cir. 2003) (abuse of discretion standard for motion to reopen)