United States v. 2008-08-25 | 06-74372 | DZYUBA V. MUKASEY | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 NIKOLAY ALEXANDROVICH DZYUBA,
Petitioner, No. 06-74372
v. Agency No.
 A71-084-224MICHAEL B. MUKASEY, Attorney
General, OPINION
Respondent. 
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
July 8, 2008—Seattle, Washington
Filed August 25, 2008
Before: Kim McLane Wardlaw, Richard R. Clifton, and
N. Randy Smith, Circuit Judges.
Per Curiam Opinion
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COUNSEL
Vicky Dobrin and Hilary A. Han, Dobrin & Han, PC, Seattle,
Washington, for the petitioner.
Ada E. Bosque and Peter D. Keisler, United States Depart-
ment of Justice, Washington, D.C.; Alison Marie Igoe and
Jeffrey L. Menkin, Office of Immigration Litigation, Wash-
ington, D.C., for the respondent.
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OPINION
PER CURIAM:
Nikolay Alexandrovich Dzyuba (“Dzyuba”), a Georgian
native and citizen of the former Union of Soviet Socialist
Republics, petitions for review of the order of the Board of
Immigration Appeals (“BIA”) removing him to the Ukraine.
The BIA upheld Dzyuba’s removal to the Ukraine pursuant to
8 U.S.C. § 1231(b)(2)(E)(i), which permits the Attorney Gen-
eral to remove an alien to “[t]he country from which the alien
was admitted to the United States.”
In November of 1965, Dzyuba was born in Georgia, then
a constituent republic of the U.S.S.R. Seven years later, he
and his family left Georgia and traveled to the Ukraine,
another area within the U.S.S.R. After suffering what he con-
siders persecution due to his Pentecostal religion, Dzyuba left
the Ukraine—when it was still part of the Soviet Union—in
July 1991 to emigrate to the United States.
Two years after entry as a refugee, the United States
granted Dzyuba legal permanent residence. However, when
Dzyuba applied for naturalization in 2002, a Department of
Homeland Security officer arrested him on the basis that he
was removable from the United States for two convictions for
crimes involving moral turpitude, id. § 1227(a)(2)(A)(ii); a
conviction for an aggravated felony, id. § 1227(a)(2)(A)(iii);
and a conviction for a crime involving domestic violence, id.
§ 1227(a)(2)(E)(i). Conceding removability, Dzyuba applied
for withholding of removal and protection under the United
Nations Convention Against Torture. After review, the BIA
determined that Dzyuba should be removed to the Ukraine
pursuant to § 1231(b)(2)(E)(i).
[1] The BIA based its holding on a finding that Dzyuba
entered the United States with a Ukranian passport. Substan-
tial evidence does not support the BIA’s finding. Rather, the
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passport in the record reflects that Dyzuba entered the United
States with a passport issued by the Soviet Union and stamped
with the date of his entry to the United States, July 5, 1991.
Because the BIA relied on this erroneous finding when apply-
ing § 1231(b)(2)(E)(i), it failed to address the novel legal
question Dzyuba’s petition actually presents: whether the
Ukraine, as of the date of Dzyuba’s entry, qualifies as a
“country,” as the term is used in the Immigration and Nation-
ality Act (“INA”), from which he was admitted.1 The term
“country” has multiple ordinary definitions, alternatively
denoting an independent political entity or merely a geo-
graphic region without reference to political sovereignty. See
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 521 (1986).
The question the BIA must address in the first instance is
whether “country,” as used in the INA, requires an indepen-
dent political entity or encompasses a non-sovereign region
within another sovereign.
[2] Courts have defined “country” in the context of pre-
decessor statutes to the INA, see United States ex rel. Men-
sevich v. Tod, 264 U.S. 134, 136 (1924) (interpreting the
Immigration Act of 1917); parallel statutory schemes, see
Bajalieh v. Beechie, 309 F.2d 386, 389 (9th Cir. 1962) (inter-
preting the Refugee Relief Act of 1953); and in determining
whether American political recognition was required to qual-
ify under the current statutory scheme, see Ademi v. INS, 31
F.3d 517, 521 n.7 (7th Cir. 1994). These cases are not disposi-
tive of the precise question presented here because we con-
strue the meaning of a given word by reference to the context
of a particular statutory regime. See United States v. TRW
Rifle 7.62X51mm Caliber, One Model 14 Serial 593006, 447
F.3d 686, 690 (9th Cir. 2006) (“[W]e do not ascertain ordi-
nary meaning in the abstract. Rather, we must decide which
of these definitions, if any, is consistent with the context of
the statute.”). Through § 1231(b)(2)(E), Congress developed
1The Ukraine did not become an independent nation until August 24,
1991, seven weeks after Dzyuba entered the United States.
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an intricate statutory scheme, replete with seven discrete
means to determine the appropriate place to which an alien is
removable. We are reluctant to assume that what “country”
meant in the context of other statutes is readily applicable to
the current statutory scheme. Moreover, Congress used the
term “country” numerous times within the INA itself, and we
must construe the term to have the same meaning each time
it is used in the Act. See Pasquantino v. United States, 544
U.S. 349, 358-59 (2005) (“To give these same words a differ-
ent meaning for each category would be to invent a statute
rather than interpret one.”) (citation omitted).
[3] Because of the deference we owe the BIA in its role in
determining in the first instance whether pre-independent
Ukraine qualifies as a “country,” see Chevron U.S.A., Inc. v.
Natural Res. Def. Council, Inc., 467 U.S. 837, 842-45 (1984),
we remand Dzyuba’s petition to the BIA to determine what
Congress meant when it used the term “country” in the
removal context. See Gonzales v. Thomas, 547 U.S. 183
(2006) (holding that remand was appropriate remedy where
BIA had not yet determined whether a “family” could consti-
tute a “social group” within the meaning of 8 U.S.C.
§ 1101(a)(42)(A)).
VACATED AND REMANDED.
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