Yaroslav P. Kuschchak v. JOHN D. ASHCROFT , United States Attorney General

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-1103
Y AROSLAV P. K USCHCHAK ,
Petitioner,
v.
J OHN D. A SHCROFT , United States
Attorney General,
Respondent.
____________
Petition for Review of an Order
of the Board of Immigration Appeals.
A76 865 624
____________
A RGUED J ANUARY 21, 2004—DECIDED M AY 3, 2004
____________
Before F LAUM , Chief Judge, and P OSNER and R IPPLE , Circuit
Judges.
R IPPLE , Circuit Judge. Petitioner Yaroslav Kuschchak seeks
review of an adverse decision of the Board of Immigration
Appeals (the “BIA” or “Board”) that deemed his application
for asylum abandoned. For the reasons set forth in the
following opinion, we deny the petition and affirm the
decision of the BIA.

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2 No. 03-1103
I
BACKGROUND
A. Facts
Mr. Kuschchak is a native of the former Soviet Union and
a citizen of the Ukraine Republic. He arrived in the United
States on July 15, 1996, as a visitor for pleasure. On June 11,
1998, Mr. Kuschchak filed an application for asylum.
In his asylum application, Mr. Kuschchak stated that his
father had been a Ukrainian police officer involved in an
investigation of high-level government officials. He ex-
plained that “[m]y father was in . . . possession of exposing
materials on the people in Ukrainian government, army and
defence [sic]. He was brutally murdered by corrupted
structures.” A.R. 148. Mr. Kuschchak stated that individuals
in the Ukrainian government believed that other family
members also possessed incriminating evidence, and he and
his family moved from town to town seeking safety.
According to Mr. Kuschchak’s affidavit, “[a]lmost all the
people who were in possession of any kind of information
pertaining [to] this case are now dead.” Id. Furthermore, the
officials targeting his family only had become more power-
ful over time and therefore he and his family, at least at the
time of the affidavit, were still at risk. See id.
When the asylum office did not approve Mr. Kuschchak’s
application, Mr. Kuschchak was placed in removal proceed-
ings.
B. Administrative Proceedings
1. Preliminary Hearing
On March 23, 1999, Mr. Kuschchak and his attorney
attended a master calendar hearing before an Immigration

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No. 03-1103 3
Judge (“IJ”). At that hearing, Mr. Kuschchak’s counsel in-
dicated that Mr. Kuschchak would like to apply for adjust-
ment of status based on his selection for the diversity lot-
tery. The IJ believed that it was unlikely, based on Mr.
Kuschchak’s lottery number, that a visa would become
available. Consequently, the IJ determined that it would not
be “an appropriate use of the respondent’s money and my
time to consider an adjustment application for which he’s
not currently eligible.” A.R. 87. However, the IJ stated that,
if it appeared that a visa would become available, he would
entertain Mr. Kuschchak’s motion for an expedited hearing
and his application for adjustment of status.
At the same hearing, Mr. Kuschchak’s attorney indicated
that Mr. Kuschchak wished to proceed on his asylum
application. After a cursory review of the papers, the IJ
noted that Mr. Kuschchak had not filed an asylum applica-
tion within one year of his arrival in the United States and
further noted that there was no such requirement for with-
holding of removal. Mr. Kuschchak’s attorney responded
that he “would like to make the application a request for
withholding of removal, but if, in fact, I discuss with Mr.
Kuschchak and discover that there was, you know, ex-
ceptional circumstances which resulted in the late filing I
would like an opportunity to file a brief in support of that.”
Id. at 89. The IJ agreed to “set the case up for a merits
hearing on the application for withholding of removal.” Id.
at 90.
Finally, the IJ tended to some scheduling matters. The IJ
inquired: “[I]f you think that you’re going to be calling more
than the respondent to testify, I’ll set it for an afternoon. If
you think he’s going to be the only witness, I’ll schedule it
for a morning.” Id. at 91. Mr. Kuschchak’s attorney re-
sponded that he believed Mr. Kuschchak was “going to be
the only witness.” Id. The IJ then set the hearing for Novem-
ber 5, 1999.

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4 No. 03-1103
2. Emergency Motion
On August 13, 1999, Mr. Kuschchak’s attorney filed an
“Emergency Motion to Advance Hearing.” Id. at 130. In that
motion, Mr. Kuschchak “respectfully request[ed] that this
Court advance his hearing.” Id. The motion first acknowl-
edged that the IJ had “scheduled the next hearing for the
Respondent on November 5, 1999.” Id. However, the motion
continued, “all applications for adjustment of status based
on the DV-99 diversity immigrant program [must] be
completed and adjudicated prior to September 30, 1999.” Id.
In short, if Mr. Kuschchak did not have his adjustment of
status adjudicated prior to September 30, 1999, his op-
portunity for the diversity lottery would be lost.
The IJ granted the motion the same day it was filed. The
order provided that “the above captioned case is scheduled
for a[n] Individual hearing before the Immigration Court on
Aug. 27, 1999 at 4:00 p.m.” Id. at 246. The order also re-
quired “[a]ny additional documents by Aug. 20, 1999.” Id.
3. Merits Hearing
Mr. Kuschchak and his attorney appeared for the hearing
on August 27, 1999. After presenting the arguments with
respect to the adjustment of status application, the IJ denied
the application for lack of eligibility. The IJ then asked Mr.
Kuschchak’s attorney to proceed with the presentation of
evidence on any other relief that Mr. Kuschchak was
seeking. The following colloquy between Mr. Kuschchak’s
attorney and the IJ ensued:
A. Well, we’re not prepared to go ahead with any other
relief today.
Q. Well, this is the time for it.
A. We’re not prepared to go ahead with anything else.

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No. 03-1103 5
The only reason we did the motion was to obtain
this one. Originally (indiscernible) that November
date. It was advanced in order to allow or proceed
with the adjustment based on that. And I’d like to
take an appeal from the decision denying this.
Id. at 109. Mr. Kuschchak’s attorney also referenced the
March hearing and stated that
there was a note in there [his file] that if his number be-
comes available we should at that time file for that [ad-
justment of status]. Being that the number is available in
September we filed based upon the available number.
But I am not prepared to proceed any further at this
time. I was here for the sole purpose that it was an
emergency hearing due to the availability of numbers,
due to the fact that he did qualify for that. That was the
sole purpose of our motion.
Id. at 109-10. The IJ then warned counsel that “either you go
ahead with the asylum application and withholding now or
I’ll consider it abandoned if you don’t.” Id. at 110. Counsel
simply responded that he would “take an appeal from that,
too.” Id.
The IJ then tried a different approach and asked Mr.
Kuschchak’s counsel if he could “make a suggestion.” Id.
The IJ stated:
I would be willing to recess the matter, let you talk to
your client, explain to him what’s happened, and, you
know, within a reasonable period of time come back,
elicit information from him on his asylum application so
you could make a record and you can go forward on
this . . . .
Id. Mr. Kuschchak’s counsel, however, flatly refused; he
stated: “No, I’m not going to talk to him. I will not proceed

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6 No. 03-1103
1 Mr. Kuschchak’s name was incorrectly spelled “Kuschak”
throughout the immigration proceedings.
on it because I’m not ready to proceed.” Id. at 111.
Finally, the IJ addressed Mr. Kuschchak directly:
Mr. Kuschak, 1 this, you have a complicated situation.
Your attorney has sought adjustment of status based on
the diversity visa program. I have told him I don’t be-
lieve that you are eligible. He disagrees with me. He’s
already told me [he] is going to ask another court to
review my decision that you’re not eligible.
Now, at the earlier hearing Miss Cho, your then
attorney, stated that you wanted to obtain political
asylum and withholding. In other words, be allowed to
remain in the United States because of a claim of
persecution. I have told [your attorney] that since I am
denying the request for permanent residence on the
diversity visa program that he should now go ahead by
presenting your case on political asylum so all matters
can be completed today. He said that he is not prepared
to proceed with that now. Now, Mr. Kuschak, I’ve told
him that I am going to go give you my decision on all
matters today, and if he doesn’t proceed on the asylum
I’ll consider it, and withholding I’ll consider it aban-
doned. I’ve also told him that I’m willing to delay
proceeding on that for a time this afternoon to give you
time to discuss this before you are called to testify. He
is insistent that he is not willing to do that.
I am telling you this so that you know the conversa-
tions that I’ve just had with him. I also want you to
know that since you are the one directly affected that
you may lose the opportunity to present information on
your asylum claim if you refuse to testify and your

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No. 03-1103 7
2 Although Mr. Kuschchak’s counsel refused to elicit testimony
regarding the asylum claim, he did ask Mr. Kuschchak to take the
stand in support of the application for voluntary departure.
attorney refused to call you today.
Id. at 111-12. The IJ then allowed Mr. Kuschchak to discuss
the matter with his attorney in private.
After the recess, and after counsel again refused to elicit
testimony from Mr. Kuschchak on his asylum application,
the IJ explained to Mr. Kuschchak that the consequences
of his attorney’s decision were that the applications for
asylum and withholding of removal would be deemed
abandoned. The IJ then asked Mr. Kuschchak: “Do you
abide by your attorney’s decision?” Mr. Kuschchak re-
sponded: “Honorable Judge, you yourself said that it was a
complicated case. I can’t make it, I can’t make a decision to
continue to go ahead with this matter, I trust my attorney.”
Id. at 115-16. The IJ therefore “accept[ed] [counsel’s] deci-
sion as that, as your decision as well.” Id. at 116. 2 The IJ
therefore deemed abandoned Mr. Kuschchak’s applications
for asylum and withholding of removal, but granted Mr.
Kuschchak voluntary departure.
C. BIA Decision
Mr. Kuschchak appealed the IJ’s decision to deem Mr.
Kuschchak’s application abandoned. The BIA held:
The respondent’s request to advance the continued
hearing to enable him to apply for adjustment of status
did not relieve him of his obligation to appear at the
hearing prepared to go forward with his application for
asylum and withholding of removal. Although the
Immigration Judge might not have specifically indicated
that the hearing would also cover the application for the

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8 No. 03-1103
asylum and withholding of removal, the Immigration
Judge informed the respondent on March 23, 1999, that
the proceedings were continued to enable him to
prepare for a merits hearing on his application for
asylum and withholding of removal. Under these
circumstances, we find that the Immigration Judge
properly concluded that the respondent abandoned his
requests for asylum and withholding of removal. It was
the respondent who incorrectly assumed that the
Immigration Judge would only consider the application
for adjustment of status at the rescheduled hearing.
Inasmuch as we find no error in the Immigration
Judge’s decision, we reject the assertion that the Immi-
gration Judge’s conduct compromised the fairness of the
proceedings.
Id. at 3 (citations omitted). Mr. Kuschchak timely appealed.
II
ANALYSIS
A. Standard of Review
Before this court, Mr. Kuschchak maintains that the IJ
deprived him of his right to due process when the IJ
deemed his applications for asylum and withholding of
removal abandoned. Whether an immigration hearing vio-
lates an alien’s right to due process is a legal question which
this court reviews de novo. See Nazarova v. INS, 171 F.3d
478, 482 (7th Cir. 1999).
B. Due Process
“It is well-settled that foreign persons in the United States
are entitled to due process,” Kerciku v. INS, 314 F.3d 913, 917
(7th Cir. 2003) (citing Zadvydas v. Davis, 533 U.S. 678, 693

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No. 03-1103 9
(2001)), and aliens subject to removal proceedings are no
exception. In that context, “due process requires notice
reasonably calculated to provide actual notice of the
proceedings and a meaningful opportunity to be heard.”
Nazarova, 171 F.3d at 482. Specifically, we have stated:
The Fifth Amendment’s due process clause mandates
that the deportation hearing be fundamentally fair.
Specifically, the alien should be afforded the following
opportunities: to exercise his right to counsel of his
choice at his own expense, to reasonably present his
evidence, and to testify.
Ambati v. Reno, 233 F.3d 1054, 1062 (7th Cir. 2000) (citations
omitted). A petitioner, however, must do more than show
that one of these tenets had been violated; in order to pre-
vail on a due process claim, “a petitioner must produce
‘concrete evidence’ indicating that the due process violation
‘had the potential for affecting’ the outcome of the hearing.”
Id. (quoting Kuciemba v. INS, 92 F.3d 496, 501 (7th Cir.
1996)).
It is undisputed that, during the August hearing, Mr.
Kuschchak was represented by the counsel of his choice and
was given an opportunity to present his evidence and to
testify. However, Mr. Kuschchak argues that the IJ’s in-
sistence that he proceed on his applications for relief—in the
face of the legitimate confusion regarding the nature of the
August hearing—deprived him of a meaningful opportunity
to present his case. Indeed, Mr. Kuschchak contends that
this court has recognized a lack of fundamental fairness in
two cases that bear a factual resemblance to his own. We
consider these cases below.
First, Mr. Kuschchak points to Podio v. Immigration and
Naturalization Service, 153 F.3d 506 (7th Cir. 1998). In Podio,
the asylum applicant based his claim in part on the fact that

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10 No. 03-1103
he was imprisoned and tortured as a result of his Baptist
faith; however, “[w]hen Podio’s attorney attempted to
question Podio about the treatment he allegedly received in
prison, the immigration judge intervened and admonished
that he did not ‘want to hear anything about what happened
in prison.’ ” Id. at 508. Later in the hearing, Podio proposed
to call his sister and brother to corroborate his story and to
testify to events subsequent to Podio’s departure from the
Ukraine. Again, however, “the immigration judge refused
to allow them to testify, stating: ‘I don’t care about them.
They’ve got nothing to do with this case.’ ” Id. After the
conclusion of the evidence, the IJ denied Podio’s asylum
application on the ground that “Podio’s testimony was
‘generalized, selfserving and uncorroborated by any
credible evidence.’ ” Id. On appeal, we held that the IJ’s
actions violated Podio’s right to due process. Our decision
was based both on the fact that the IJ “curtailed Podio’s
testimony regarding the treatment allotted to him in
Siberia” and that he “refus[ed] to allow Podio’s brother and
sister to testify at all.” Id. at 510.
Mr. Kuschchak argues that his situation is akin to that of
the applicant in Podio because the IJ’s decision to deem Mr.
Kuschchak’s application for asylum abandoned
was unwarranted in view of the reasonableness of
the misunderstanding and the failure of the I.J. to clarify
that any request for an earlier hearing date would
include all applications for relief. This decision deprived
Mr. Kuschchak of any hearing to present testimony,
evidence, and witnesses in support of his claim of
persecution.
Petitioner’s Br. at 19.
We fail to see the similarities between Mr. Kuschchak’s
hearing and that of the applicant in Podio. In the present
case, the IJ requested several times that Mr. Kuschchak

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No. 03-1103 11
3 At the master calendar hearing in March, Mr. Kuschchak’s
attorney had indicated that Mr. Kuschchak likely would be the
only witness to testify at the merits hearing.
proceed with the presentation of evidence. Mr. Kuschchak’s
attorney and Mr. Kuschchak himself refused to go forward
without additional time to prepare. The IJ did not stymie
Mr. Kuschchak’s ability to go forward; indeed, he offered
Mr. Kuschchak and his counsel a recess during which time
counsel could prepare Mr. Kuschchak for his testimony.
Finally, the present case does not involve a situation in
which the IJ barred key corroboration witnesses from
testifying; to the contrary, although Mr. Kuschchak suggests
that he would have presented the testimony of other fact
witnesses and an expert if the asylum hearing were held at
a later time, 3 he has not identified those witnesses or the
nature of their testimony. Consequently, on the record
before us, we cannot conclude that when the IJ required Mr.
Kuschchak to proceed in August, as opposed to November,
Mr. Kuschchak was deprived of the opportunity to present
corroborating testimony or other crucial evidence.
Mr. Kuschchak also suggests that this court’s decision in
Nazarova, 171 F.3d 478, requires us to reverse the BIA’s
decision in his case. In Nazarova, the asylum applicant
received a notice to appear for a removal hearing. Because
she spoke only Russian, Nazarova requested that her
English-speaking employer call the Immigration and
Naturalization Service (“INS”) to determine whether an
interpreter would be available at the hearing. The INS rep-
resented that an interpreter would be available; however,
when Nazarova appeared at the hearing, there was no
interpreter present. Nazarova therefore hired her own
interpreter for the merits hearing. Nazarova went to meet
her interpreter on the date of her merits hearing, but he was

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12 No. 03-1103
not in his office; Nazarova waited for him for two hours.
When he finally arrived, they proceeded immediately to the
hearing; however, the IJ already had adjudicated
Nazarova’s case in her absence. The BIA affirmed the IJ’s in
absentia order, and Nazarova appealed to this court. In
reversing the BIA, the majority of the panel stated:
On the unusual facts of this case, Nazarova received
adequate notice, but she did not receive a meaningful
opportunity to be heard. A non-English-speaking alien
has a due process right to an interpreter at her deporta-
tion hearing because, absent an interpreter, a non-
English speaker’s ability to participate in the hearing
and her due process right to a meaningful opportunity
to be heard are essentially meaningless. . . .
. . . The entire unfortunate chain of events leading to
Nazarova’s tardiness at her second hearing began with
the INS’s confusing and contradictory actions with
respect to the interpreter question. When it failed to
produce one at Nazarova’s first hearing, she reasonably
believed that the advice her employer had received over
the telephone was in error and that she needed to find
her own interpreter. Whether or not the INS gave
consistent or accurate advice on this crucial aspect of the
hearing was certainly a matter beyond Nazarova’s
control, and it made all the difference to the quality of
process she received.
Id. at 484.
Despite Mr. Kuschchak’s arguments to the contrary, the
facts presented in this case are not equivalent to the “un-
usual facts” presented in Nazarova. The crux of our decision
in Nazarova was the “confusing and contradictory” action on
the part of the INS that led to the “entire unfortunate chain
of events.” Such an action is wholly absent from the present

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No. 03-1103 13
record. The only actions by the IJ prior to the August
hearing were: 1) to advise Mr. Kuschchak’s prior counsel
that, if it appeared likely that a visa would become available
for Mr. Kuschchak, she could move for an earlier hearing,
and 2) to grant Mr. Kuschchak’s “Emergency Motion to
Advance Hearing.” Any confusion was caused by the
phrasing of Mr. Kuschchak’s motion for the August hearing,
not by any action of the Government or the IJ. Mr.
Kuschchak’s counsel styled his motion as a motion to
advance hearing, as opposed to simply a motion for an
adjustment hearing. In response to Mr. Kuschchak’s motion,
the IJ advanced the previously scheduled merits hearing,
the parameters for which were set in the March hearing and
which included the presentation of evidence for asylum
and/or withholding of deportation. Although the IJ did not
affirmatively state that the advanced hearing would address
every form of relief that Mr. Kuschchak was seeking, the IJ’s
actions were consistent with the understanding that the
merits hearing in November was being advanced: The
notice of the new hearing provided Mr. Kuschchak with a
new deadline to file additional supporting documentation,
such as a brief in support of Mr. Kuschchak’s right to apply
for asylum outside the statutory time limits, and also
provided that “[f]ailure to appear for this hearing other than
because of exceptional circumstances beyond your control
will result in your being found ineligible for certain forms
of relief under the Immigration and Nationality Act.” A.R.
246 (footnote omitted). Consequently, neither the IJ nor the
Government took any action or made any statement to
mislead or to confuse Mr. Kuschchak; any confusion was the
result of Mr. Kuschchak’s motion and the assumptions
under which Mr. Kuschchak’s attorney was proceeding.
Finally, Mr. Kuschchak argues that, even if the IJ was not
in error in deeming his applications for relief abandoned, he
should not have to suffer the consequences of his attorney’s

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14 No. 03-1103
actions. Mr. Kuschchak cites this court’s decision in
Guentchev v. Immigration and Naturalization Service, 77 F.3d
1036 (7th Cir. 1996), in support of his position. In Guentchev,
the petitioner’s counsel failed to include the IJ’s opinion in
the appendix to his brief. We noted:
In ordinary civil litigation, failure to supply the court
with the decision under review leads to summary af-
firmance. In criminal cases, by contrast, courts regularly
protect suspects and prisoners from the errors of their
lawyers. We have deemed time in prison an excessive
sanction for a non-jurisdictional procedural default, and
have concluded that counsel should bear the conse-
quences of noncompliance. Deportation, often grouped
with criminal litigation because of the severe conse-
quences, deserves similar treatment. We have tracked
down the immigration judge’s opinion and considered
all of Guentchev’s arguments on the merits, in order to
protect him from the procedural gaffes of his lawyer.
Id. at 1039 (citations omitted).
Again, we find little in Guentchev that assists Mr.
Kuschchak. First, Mr. Kuschchak does not argue that his
attorney failed in his representation; indeed, he states that
“[t]he belief held by . . . [his counsel] that the August 27,
1999 hearing would only be on the adjustment application
was reasonable under the circumstances of this case.”
Petitioner’s Br. at 20. Second, although initially counsel’s
decision not to go forward was his alone, later in the hear-
ing Mr. Kuschchak made an informed, independent deci-
sion not to present his evidence before the IJ. The IJ twice
addressed Mr. Kuschchak directly and warned him of the
possible consequences of failing to go forward, after which
Mr. Kuschchak told the IJ that he would abide by the
decision of his counsel. Thus, although we have held that,
in some circumstances, an alien should not be prejudiced by

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No. 03-1103 15
his counsel’s actions, here Mr. Kuschchak was given the
opportunity to proceed and was warned of the conse-
quences of the failure to do so. The decision not to proceed
was his own, and he must bear the consequences of his
decision.
As a final matter, we note that, even if we had found that
the IJ’s actions deprived Mr. Kuschchak of his right to due
process, Mr. Kuschchak still was required to come forward
with evidence to show that the deprivation “had the
potential for affecting the outcome of the hearing.” Ambati
v. Reno, 233 F.3d 1054, 1062 (7th Cir. 2000) (citations omit-
ted). Mr. Kuschchak maintains that he met this burden
because, if the IJ had not considered the application for
relief abandoned, Mr. Kuschchak “would have presented
testimony and evidence in support of these applications and
to establish his statutory eligibility to apply for asylum
under one of the exceptions in the INA section 208(a)(2)(D)
more than one year after his arrival in the United States in
July 1996.” Reply Br. at 17. Although this statement suggests
that the hearing would have proceeded differently had it
been held in November, it does nothing to show that the
outcome of the proceeding would have been different.
Indeed, Mr. Kuschchak’s argument is similar to that of the
petitioner in Ambati. In Ambati, an initial continuance had
been granted to allow the petitioner to secure counsel. The
petitioner did so, but on such short notice that new counsel
did not believe that she was prepared to go forward. None-
theless, because the IJ refused to grant another continuance,
the attorney presented the testimony of Ambati. Before this
court, Ambati argued that the IJ’s failure to grant another
continuance violated his rights to due process. This court
disagreed and noted:
Mr. Ambati offers no evidence that the outcome of
the hearing would have been different had he obtained

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16 No. 03-1103
4 In addition to claiming that the actions of the IJ violated his
due process rights, Mr. Kuschchak also maintains that the IJ’s
actions violated the BIA’s own precedent, specifically Matter of
Fefe, 20 I. & N. Dec. 116 (BIA 1989), and Matter of Balibundi, 19
I. & N. Dec. 606 (BIA 1988). Both of these cases emphasize the
necessity of an applicant’s oral testimony in support of an asylum
application. The IJ’s decision to deem Mr. Kuschchak’s application
abandoned in the absence of supporting testimony is completely
consistent with these decisions.
a continuance. He has not set forth any evidence that
would have been presented or arguments that would
have been made had his counsel been given additional
time to prepare his case. Consequently, assuming a due
process violation occurred, Mr. Ambati has not come
forward with evidence that the violation affected the
outcome of the hearing.
Id. at 1062. Mr. Kuschchak, like Ambati, failed to come
forward with any evidence or legal argument showing that
he would have been granted asylum or withholding of
deportation if allowed to go forward. Consequently, Mr.
Kuschchak has not made the necessary showing of prejudice
in order to make out a due process violation under this
court’s case law. 4
Conclusion
For the foregoing reasons, the petition for review is
denied, and the judgment of the BIA is affirmed.
P ETITION FOR R EVIEW D ENIED ; A FFIRMED
A true Copy:
Teste:

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No. 03-1103 17
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-3-04

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