Giedrius Leo Kazlauskas v. Immigration & Naturalization Service

“(1) fraud, of unfortunate circum- have started a chain illegality, breach of here: present view, (2) point of is not duties; stances from Jones’s undercapitalization; and fiduciary required of the sort (3) inequitable as a mere conduct of the debtor use claimant’s Custom, Fuel, mortgage. As preferred ego.” subordinate instrumentality or alter status, preferred ship mortgage has MNB’s at 566. that its court should have ordered the district v. First to follow McCorkle urges us Jones priority. has interest Co., 459 Banking and Trust Pennsylvania (4th Cir.1972), where the n. 9 and REMANDED. REVERSED “[wjhere par- both said Fourth Circuit had wrongdoing and one are innocent ties the power prevent the fraud while

it in his not, higher equi- the latter has the other did was dis- the McCorkle action ty.” Because jurisdiction, the statement for lack of missed there- relies is dicta and upon which Jones event, balancing persuasive. fore determining the equities whether before KAZLAUSKAS, Petitioner, Giedrius Leo engaged inequitable conduct is lender has adopted in approach we inconsistent with the There,

Wardley, F.2d at 263. we relied & NATURALIZATION IMMIGRATION mort- demonstrated the on facts which SERVICE, Respondent. engaged inequitable conduct gagee had security gratuitous interest: order to obtain 92-70665. No. (1) than promissory note was more three the Appeals, United States Court outstanding purchase times the debt on Ninth Circuit. (2) mortgagee never advanced price; to the owner on the consideration vessel April 1994* Submitted (3) note; mortgagee unjustifiably extend- 27, 1995. Decided Jan. rights in the vessel for an additional ed its pay- by splitting purchaser’s years five purchase mortgage for the

ment between the (4) note; mortgagee had price and the buyer debt of the guarantee a substantial seller, it received the with the effect incurred earnings vessel’s while the vessel supplies; and maritime liens for services (5) finally, “completely mortgagee transaction, aware” of which cast doubt mortgage. Nothing legitimacy on the gave full similar The bank here: value to for its interest the owner of the boat culminating in

and was events unaware of the registration. the issuance of a second federal Wardley to the bank’s We decline to extend here; Key negligent conduct if even (which assume, decide), negli- do not gence does not suffice.

Therefore failure to control the bank’s titling though that process, state * 34(a) panel appropriate and 9th Cir.R. 34-4. for submis- finds this case argument Fed.R.App.P. pursuant sion without

WIGGINS, Judge:

OVERVIEW Leo Giedrius

Petitioner judge immigration deportable found (“IJ”) asy- applications for Kazlauskas’ and withholding deporta- temporary lum and Immigration The Board of tion were denied. decision, (“BIA”) affirmed the IJ’s Appeals jurisdic- appeals. We have and Kazlauskas 1105a, § and we pursuant tion to 8 U.S.C. affirm.

FACTS Kaunas, in Lithuania was born

Kazlauskas was controlled when father had the Soviet Union. political prisoner a dissident and been in 1975. camps, where he died Soviet labor partic- religious and resisted Kazlauskas the Com- programs sponsored by ipation result, he was ostra- Party. As a munist cized, peers, and his teachers harassed advancing to the univer- prevented from and sity. country in at came to this

Kazlauskas thereafter, Shortly he age of sixteen. drinking problem. he developed a mother burglary. His was twice convicted refugee a but granted as hearing failed to attend he, too, granted asy- been could have which then, sober and he has lum. Since become help steady job him to that allows has held with her bills. began deportation proceedings The INS 11, 1989. Kazlauskas on December against alleged that Ka- to show cause The order deportable he over zlauskas was because had been stayed visa and because he CA, Wood, peti- Angeles, for Judith L. Los turpitude, in crimes of moral of two convicted tioner. (4) 1251(a)(2) § and violation of 8 U.S.C. Torstenson, (now of Im- Karen Office Fletcher renumbered as U.S.C. Justice, (2)(A)(ii)). 1251(a)(1)(C)(i) migration Litigation, Dept, § U.S. and DC, Washington, respondent. requested deportability, for he conceded (“section 1158(a) § under U.S.C.

208”) withholding deporta temporary (“section 1253(h) § 8 U.S.C. tion under 243(h)”). hearing, the preliminary After NOONAN, Department opinion of the State HUG, WIGGINS, solicited the Before: requests. March concerning On Judges. 12, 1990, Department responded Asylum Application the State B. Kazlauskas' that it believed that Kazlauskas had a well- two-step inquiry required A is founded fear of if he returned to evaluating applicant's request Lithuania. Barraza Rivera v. When the reconvened on October (9th Cir.1990). First, applicant must es 22, 1990, requested another State eligibility asylum by tablish his demon Department opinion changes because of strating statutory, that he meets the defini recently had occurred in Lithuania. That "refugee." Id.; 1158(a) § tion of a 8 U.S.C. opinion, April 30, 1991, dated stated that "the (asylum only available if the is a republics very situation in the Baltic is stifi "refugee" defined 8 U.S.C. fluid," possible predict and that "it is not 1101(a)(42)(A)).1Refugee § status be [Kazlauskas] what would await if he were by showing past per established a of either obliged to return" to Lithuania. Kazlauskas' persecution. secution or future Acew April 8, resumed on 1992. The IJ INS, 1056, (9th requests asylum icz v. 984 F.2d 1061-62 Cir. denied Kazlauskas' 1993); Berroteran-Melendez, temporary withholding deportation. 955 F.2d at (citing Ilchert, adopted 1255 & n. 3 Desir v. 840 F.2d BIA affirmed the IJ'5 decision and 723, (9th Cir.1988)); reasoning. appeals, 729 Matter of the IJ'5 guing ar- 331860, 3104, that the treatment that he suffered 1989 WL Interim Dec. 1989 youth 10, (B.I.A. Apr. 25, while a in Lithuania and the likelihood BIA LEXIS at *4-*6 persecution 1989); 1101(a)(42)(A)(defining of deportation. if he returns merit relief from § see 8 U.S.C. refugee unwilling as one who is unable or country origin to return to his "because of persecution perse DISCUSSION or a well-founded fear of cution") (emphasis added). I. DENIAL OF APPLICATION FOR ASYLUM question The second is whether the eligible applicant asylum A. Standard of Review is entitled to as a 1158(a); § matter of discretion. 8 U.S.C. 2 indepen Because the BIA did not Stevic, 407, 18, INS v. 467 U.S. 423 n. 104 dently review Kazlauskas' case and instead 2489, 18, (1984); S.Ct. 2497n. 81 L.Ed.2d 321 adopted opinion, the IJ's we review the deci Rivera,, Barraza 913 F.2d at 1449. At this Campos-Granillo INS, sion of the IJ. See step, prospective questions second about the 849, (9th Cir.1993). 852 We review a potential applicant's effects of the return to denial of for an abuse of discretion. country origin again relevant, are INS, Berroteran-Melendez v. eligibifity if the established his (9th Cir.1992). findings The factual asylum by showing only past persecution. underlying the decisionare reviewed for sub evidence, See Matter of stantial and the IJ's determination ("[i]f compelling BIA LEXIS at *6 an alien estab should not be reversed absent eligible persecution. lishes that . . . he is for a evidence of See INS v. Elias- asylum[,] present Zacarias, 478,480-81, [t]he likelihoodof or future 502 U.S. 112S.Ct. (1992); persecution 117 L.Ed.2d 38 Ghebllawi v. then becomes relevant as to the INS, discretion, asylum may 85-86 exercise of "refugee" 1101(a)(42)(A). § 1. A is definedas 8 U.S.C. anyperson anycountry whois outside ofsuch person'snationality 1158(a)grants ... and who is unableor 2. Section discretionto the Attor unwilling ing to, to return and is unableor unwill- ney By regulation, General. the INS has dele protection to availhimselfor herselfof the gated discretionaryauthorityto 1J5. 8 C.F.R. of, country persecution becauseof or a 3.10,208.14(a), (1994). §§ 242.8 An U's deci well-foundedfear of on accountof sion is then reviewable the BIA. Id. race, religion,nationality,membershipin a 1(b)(2),208.18(c),242.21(a). §§ 3. particular group, political opin- social or ion.... The IJ based support the IJ’s conclusion.4 discretion if there is matter of as a denied Department analysis on the 1991 State persecution”). likelihood little Practices, Rights Country Report on Human in this of the IJ oral decision While ap most has been described as “the which clarity, conclude a model is not case perhaps the resource” for propriate and best de- request for relief from that Kazlauskas’ foreign situations “information The IJ’s properly denied. Rojas F.2d 190 n. nations.” two-step inquiry correct opinion states (5th Cir.1991); also Getachew v. see the relevant factors of address and it does Cir.1994) (disputing case. description political climate BIA’s was “statu- that Kazlauskas The IJ stated differing analysis con Ethiopia on the based discretionarity ineligible for torily as well country Department’s in the State tained statement as a con- asylum.” read this We Department report pro report). The State demon- that Kazlauskas clusion the IJ up-to-date information about the most vided eligibility nor his entitle- neither his strated it in Lithuania and described conditions whether dramatically do not decide changed ment to that had since correctly coup in the Soviet August determined 1991 failed the IJ then, Lithuanian because authori statutorily ineligible for Union. Since fully reigns govern assumed the ties had permissibly found we conclude ment, protect laws to indi enacted numerous matter of discre- asylum as a unwarranted of Li rights, improved the conditions vidual tion. during imprisoned thuanians who had been to determining whether In control, many and discontinued of the Soviet matter, likeli discretionary the asylum as a practices of surveillance and former Soviet particularly is a persecution future hood of reports no of con control. There had been Matter important factor to consider. See of Lithuanian authorities similar to duct the (1987). 467, Pula, The N. DeC. 474 19 I. & repressive and abusive conduct former not have a that Kazlauskas does IJ concluded authorities. Soviet if he returns persecution fear of well-founded per a likelihood of future Absent Lithuania, agree. and we secution, asylum is warranted for “humani fear of a well-founded To establish only if Kazlauskas demon tarian reasons” both that persecution, Kazlauskas must show family strates that in the or his “[he] fear, that his fear is genuine he has a perse ‘under forms of has suffered atrocious ” objectively Berroteran-Me reasonable. See Acewicz, (quoting at 1062 cution.’ 984 F.2d lendez, The IJ exhaustive 955 F.2d at 1256. Chen, 331860, BIA Matter 1989 WL 1989 of ly explained why (internal could not meet Kazlauskas 10, quotation omit LEXIS at *8 ted)). objective light 331860, in of the dramatic element In Matter 1989 WL of Rep political sufficiently in Baltic changes and social the BIA concluded that atrocious had been shown where Chinese evidence We find substantial ublics.3 9, 1990, February sought changes a State De political 3. On Fundamental social or applicant’s highly opinion changes relevant to partment homeland are the effect that in about See, e.g., persecution. Her- likelihood of future would have on the likelihood of Ka Lithuania 509, 513 v. persecution. During nandez-Ortiz zlauskas' future Kazlaus- Cir.1985) determining eligi- (noting, context of in 22, 1990, hearing kas' on October the IJ ex country bility asylum, of that conditions changes plained in Lithuania necessi that recent perse- origin cution); of future are relevant to likelihood Department advisory opin tated a second State 331860, WL 1989 Matter 1989 of 8, April resumed on ion. When 10, (same, context of BIA LEXIS discretionaiy at *6-*7 argued despite changes asylum). entitlement Lithuania, he retained a “well-founded fear of persecution.” presented He witnesses and docu matter, reject 4. a As threshold Kazlauskas' argument. mentary support evidence to his argument that the IJ abused his discretion changes of the in Li IJ considered nature changes taking of the administrative notice specific facts of Kazlauskas' thuania and the INS, where this Lithuania. As in Acewicz process due case. We conclude there was no permitted court notice of administrative Poland, because Kazlauskas had both no violation here changes in notice in this administrative opportunity process tice and an to be heard. case violation. did not result in due tortured, harassed, con- applicant only Christian had been 955 F.2d at 1255. An qualifies fined, and denied food and medical attention a withholding deportation of if he shows age eight. probability since the persecution” “clear upon re 1989 BIA LEXIS at *9-*14. We do not Stevic, turn origin. to his attempt showing to define the minimum 2492; Acewicz, U.S. S.Ct. at “atrocity” necessary to warrant a discretion- probability” F.2d at 1062. A “clear means ary grant past persecu- based will more than not merely tion alone. hold that the IJ did persecuted if deported. INS v. Cardoza- by concluding not abuse his discretion that Fonseca, 421, 430, 480 U.S. 107 S.Ct. and ostracism the harassment (1987); Acewicz, 94 L.Ed.2d 434 past persecu- suffered is not such “atrocious” F.2d at 1062. stringent This is a more stan discretionary grant tion as to warrant a of dard than the “well-founded fear” standard asylum.5 required by Acewicz, section 208. at 1062. Because Kazlauskas cannot meet If an IJ fails to consider factors that the lower standard of section he neces asylum application, are relevant to the it sarily fails to probability” show a “clear Castro-O’Ryan abuses its discretion. 243(h). persecution under section See id. light significant changes Lithuania, here, That is the ease however. The IJ the IJ’s denial of Kazlauskas’ waiver of de considered both favorable and unfavorable supported by substantial evi factors, including persecu the likelihood of dence. Lithuania, tion if Kazlauskas returns to severity family’s past CONCLUSION rehabilitation, persecution, his alcohol the cir reasons, forgoing For the we conclude that surrounding departure cumstances from discretionary denial of appli- entry Lithuania and his into the United cation for was not an abuse of discre- States, and his criminal record since he has tion supports and that substantial evidence (relevant country. been this id. See fac application the denial of Kazlauskas’ for tem- might applicant’s prior tors include convic porary withholding deportation. of tions, him, family’s dependence his his therefore AFFIRM. rehabilitation, dangers likely and the he is if origin); face returned to his of NOONAN, Judge, dissenting: Matter 1989 BIA of *8; Pula, LEXIS at Matter 19 I. petitions & N. Giedrius Leo Kazlauskas this Castro-O’Ryan, Dec. at 473-74. Unlike 847 court to review the decision of the Board of (the Board) at F.2d which this court found an Immigration Appeals denying discretion, opinion abuse of IJ’s this adopted him The Board the decision case does review the evidence and does not reasoning Immigration Judge and the of the prior (IJ). treat Kazlauskas’ Board, convictions as “dis- by We review the the terms Indeed, positive.” opinion properly the IJ’s of its decision we are referred to the decision particular places emphasis on the treatment reasoning reasoning and of the IJ. The IJ’s if to face he returns to acknowledges is far from clear. He that id.; Pula, Lithuania. See Matter 19 I. & Dec., under I Matter 20 & N Int. N. Dec. at 474. (BIA 1989), asy- Dec. 3104 for eligibility by presenting lum establish II. DENIAL OF APPLICATION FOR past persecution, evidence of as Kazlauskas TEMPORARY WITHHOLDING OF sought testimony to do. The IJ believed the DEPORTATION of Kazlauskas but ruled that there was no proof sought The IJ’s decision to withhold de “that he has ever been out for 243(h) persecution by under section is reviewed for the former Soviet Union or its Berroteran-Melendez, government substantial apparatuses.” reaching evidence. or being 5. Cases in other circuits have found un- tion and sufficient); harassed officials at work not egregious Rojas, (prior warranted on facts far more than those at ar- rest, torture, beating, in this case. Skalak v. and dismissal from work (7th Cir.1991) sufficient). (being jailed interroga- twice for not Sunday at eight for hours each teered about ignored IJ this conclusion stay subjected recovery help “young people house to he was testimony that at school away The IJ also should have because of his reli- from alcohol.” teachers harassment testimony only through suffering that that his his mother’s observed gious and beliefs age years, from 1963 to the disease of alcoholism the from period for a annually put under house he fail to be included with parents were 16 did days the effect period political with and that for a when she received arrest prisoners burglary” and did they convictions for that the “numerous at school any The teachers and appearances have friends. court amounted two family state who held his agents of the period April-May those 1983when Kazlauskas of the Un- were officials suffering under arrest Soviet from his years old and still nineteen Kazlauskas and his believed ion. As IJ long recognized that disease. We have mother, pre- as no other evidence to alcohol is an illness not chronic addiction sented, rejecting their had no basis for the IJ Weinberger, 509 F.2d crime. Griffis persecu- suffered testimony Cir.1975). that Kazlauskas (9th reading A fair government when he was from the tion burglary convictions connects them with the Lithuania. Finally, he then suffered. illness which hardship should have considered on to find that there was no The IJ went deportation upon would inflict persecut- would be that Kazlauskas evidence mother, lawfully now admitted to who is government Lithuania. ed depends heavily and who the United States respondent “The has had The IJ added: upon support, companion- him financial country, nu- the laws of this difficulties with family Campos-Granillo ship and affection. burglary, alcohol merous convictions (9th Cir.1993), Although appears to be reha- there abuse. Feb. amended 94 C.D.O.S. 1131 Cir. part, these are factors bilitation on 1994) (sic) against respondent’s case to mitigate discretion, if granted a matter of Board, affirming without found to have established a well- he had been work, inadequate achieved effort to redo his past or the founded fear of should, could, do a severe result. We present.” better. analysis by proper A the IJ on the basis of testimony undisputed would have been persecution by the So

that Kazlauskas’ eligi in Lithuania made him government viet asylum. v. ble for Acewicz Ilchert, Cir.1993); Desir v. TRIBE, Plaintiff-Appellee- The HOPI (9th Cir.1988). 723, 729 The IJ was Cross-Appellant, position could have then which he not exercised discretion TRIBE, al., et The NAVAJO Defendants- Acewicz, However, 1056. Appellants-Cross-Appellees, discretion the was bound to exercise of including look at all the factors the case petitioner. favorable to the Shahan those America, et UNITED STATES of I.N.S., deh-Pey v. al., Defendants-Appellees. factors to Ka- favorable 92-16448, 92-16510, Nos. 92- only zlauskas rehabilitation from his 16839 and 92-16840. teen-age abuse of alcohol—a rehabilitation Appeals, United States Court disparagingly noted the IJ— somewhat Ninth Circuit. had worked but also the evidence that he years; had past full-time for the two that he Argued May 1994. and Submitted States; plans marriage in the United Decided Jan. 1995. supports financially; that he he Service; registered had for the Selective 1982; paid

he had income taxes since that for had volun- 18 months he

Case Details

Case Name: Giedrius Leo Kazlauskas v. Immigration & Naturalization Service

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jan 27, 1995

Citation: 46 F.3d 902

Docket Number: 92-70665

Court Abbreviation: 9th Cir.