UABA files amicus curiae brief to fight wrongful characterization of Rukh (07/14/02)

UABA files amicus curiae brief to fight wrongful characterization of Rukh

by Peter Steciuk

PHILADELPHIA - The Ukrainian American Bar Association (UABA) recently filed an amicus curiae brief to challenge a U.S. immigration court's characterization of the Popular Movement of Ukraine (Rukh) as an anti-Semitic, persecutory organization.

That derogatory and unfounded characterization comes from a 1998 decision that by the Board of Immigration Appeals (BIA) affirmed an immigration judge's opionion in the "Matter of O-Z & I-Z," an asylum case filed by two former Ukrainian nationals. The BIA's decision is now legal precedent, and can result in the denial of asylum, and even admission to the United States to members (or former members) of Rukh, an organization formed in the late 1980s to promote democratization in the USSR during the Gorbachev era.

The UABA seeks to remove the anti-Semitic and persecutory labels from Rukh, so that otherwise eligible individuals who wish to immigrate to the United States will not be faced with possible exclusion based on involvement with that organization.

The author of the brief, which was filed on April 22, is Andre Michniak, president of the UABA. Mr. Michniak has been practicing for 20 years in the areas of immigration law and civil litigation, and is a member of The Washington Group, as well as various professional organizations.

According to Mr. Michniak, the UABA became involved because the decision characterizing Rukh as an anti-Semitic organization is considered legal precedent. As it stands today, a court or the INS can deny not only asylum but also residence in the United States to applicants based solely on membership in Rukh. Mr. Michniak fears that this is a likely scenario considering the number of courts that have cited "Matter of O-Z & I-Z" in their decisions.

However, Mr. Michniak said the UABA hopes to greatly minimize the effects of the BIA decision. The UABA's "friend of the court brief" has provided accurate information on Rukh to the Board of Immigration Appeals, which might be utilized in future decisions. Mr. Michniak said the UABA also hopes to limit what it considers an inaccurate characterization of Rukh to the facts of the case in which the characterization was originally made.

If the BIA agrees with the UABA, the characterization of Rukh as anti-Semitic might become limited to a certain time and place, and to specific events; it would not be applicable to every member of Rukh. In other words, even if some Rukh members might have used the organization for isolated anti-Semitic actions, the organization itself would be considered neither anti-Semitic nor persecutory. As a result, in order to deny asylum to members of Rukh on the basis of participation in the commission of persecutory acts, INS attorneys would need to show that the person applying for asylum actually participated in persecutory acts rather than relying simply on the applicant's membership in Rukh.

Response to 2001 case

The UABA's amicus curiae was filed in response to the case of Volodymyr Bolyuk, which was decided in May 2001. Mr. Bolyuk was a 41-year-old Ukrainian who crossed into the United States from Ukraine via Mexico in April 2000 and then applied for asylum. Mr. Bolyuk, a dentist with a wife and two children, had been a member of Rukh since December 1990. He claimed that he had suffered persecution as a result of his membership in Rukh and that he feared returning to Ukraine for that reason.

Mr. Bolyuk testified that he spoke at a rally the day after the death of Rukh leader Vyacheslav Chornovil, where he accused the government of planning the car accident that took the life of Mr. Chornovil. After the rally, state security officials allegedly took Mr. Bolyuk to a secluded place in the woods and beat him, telling him not to get involved with politics. Mr. Bolyuk again blamed the government for Mr. Chornovil's death at a rally marking the 40th day since the Rukh leader's death. Mr. Bolyuk claimed that the police beat him outside his apartment, calling it a last warning and threatening his health and that of his family.

Fearing reprisals for Mr. Bolyuk's political activity, his wife and children moved in with a friend in another town, and in 1999 Mrs. Bolyuk moved to the United States. Mr. Bolyuk testified that he left Ukraine in 2000 because of the disappearance and murder of several Rukh members.

The U.S. immigration judge ruled against Mr. Bolyuk, denying him asylum. The UABA brief neither contests this outcome nor debates the merits of Mr. Bolyuk's case. It does, however, complain about the way in which the decision was reached.

For example, the court found no evidence to support Mr. Bolyuk's claim that political opponents of the Ukrainian government had been killed or kidnapped. However, the court had reviewed the Ukraine entry in the State Department's Country Reports on Human Rights Practices only for 2000, even though Mr. Bolyuk's claims regard the year 1999, not 2000. The UABA's amicus curiae brief points out that the country report for 1999, unreviewed by the court, does indeed note that, "the 1994 disappearance of Mykhailo Boichyshyn, a prominent leader of the Popular Movement of Ukraine party, remains unsolved."

What led to the filing of an amicus curiae by the UABA was that the court had considered denying Mr. Bolyuk asylum solely on the basis of his membership in Rukh. The court decision in the Bolyuk case states that, in order to be granted asylum, individuals must "establish either past or future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." The court went on to write, "certain aliens are barred from receiving asylum, including aliens who ordered, incited, assisted or otherwise participated in the persecution of any person..." If there is evidence that the applicant for asylum might have persecuted others, the burden of proof shifts to the applicant to show that he did not participate in such persecution.

The INS argued that Mr. Bolyuk was ineligible for asylum because, according to the former decision, Rukh was characterized as a pro-nationalist organization that is anti-Semitic and persecutes Jews. Thus, Mr. Bolyuk would be considered guilty of persecution by virtue of his involvement with Rukh, regardless of whether he personally participated in the acts of persecution. The INS compared this to the guilt of Nazis who enabled persecution by serving, for example, as fund-raisers.

The court decided that the burden of proof in this matter shifted to Mr. Bolyuk, because evidence existed that Rukh is an organization that persecutes Jews. Referring to the prior decision, the court wrote, "The Board of Immigration Appeals decision indicates that the Rukh is a nationalist, anti-Semitic organization."

The court also questioned whether Mr. Bolyuk's involvement in Rukh propaganda might have included anti-Semitic propaganda. Mr. Bolyuk denied that he had ever been involved in any anti-Semitic acts; he also argued that Rukh condemns anti-Semitism and assists Jewish schools and cultural centers.

Although the court ultimately found that Mr. Bolyuk had satisfied his burden of proof, it added that the court's decision was "a very, very close call." Although it was on other grounds that Mr. Bolyuk was denied asylum, he was very nearly denied asylum solely as a result of his membership in Rukh. The court decision strongly implied that such a result could be justified, depending on the particulars of a case. Therefore, the distinct possibility exists that current or former members of Rukh could be denied asylum because of their involvement in Rukh, Mr. Michniak explained.

Precedent set in 1998

The characterization of Rukh as an anti-Semitic organization is the result of a 1998 decision by the Board of Immigration Appeals. According to the UABA's amicus curiae brief, that characterization of Rukh is not warranted based on the evidence of the case. The action was an appeal by the INS of a 1996 case in which a father and son, both Jewish, had applied for asylum to the United States.

In their asylum application, the father and son recounted several instances of anti-Semitic action against them. The father claimed that, in addition to being Jewish, he was persecuted because he had made a public speech advocating unification with Russia. However, the UABA contends that this evidence does not warrant labeling Rukh as persecutory. In two of the incidents, both beatings, the attackers used anti-Semitic and anti-Russian terms, but in neither incident were the attackers identified as Rukh members. Another complaint involved the son's school forcing him to read "nationalist literature promulgated by Rukh," in 1991. The decision left unclear just what this meant, so the UABA questioned whether it was simply literature favoring Ukraine's independence and democratization.

The following excerpt from the court's decision was used to justify its characterization of Rukh: "On February 12, 1992, he [the father] attended a political rally at which he gave a short speech promoting democracy and unification with Russia. Immediately after he finished his speech, someone grabbed him and began to beat him. He recognized the insignia on the clothing of his attacker as a symbol of 'Rukh,' a nationalistic, pro-Ukrainian independence movement. ... That evening he discovered a leaflet from Rukh in his pocket with the message 'Kikes, get away from Ukraine.' He testified that he began to receive similar anti-Semitic leaflets at home in his mailbox or slipped under the door. ...

"In March 1992, a month after the attack at the rally, the respondent's apartment was vandalized. The door had been broken down, furniture was ripped open, some of his possessions were stolen, others were smashed, and a half dozen leaflets from Rukh were left at the scene. The leaflets warned that 'kikes' and 'Moskali,' a derogatory term for Russian nationals living in Ukraine, should leave Ukraine to the Ukrainians."

The UABA complains that the conclusion that Rukh was responsible for these acts is unjustified. It is possible that another group simply purchased a Rukh insignia, which Mr. Bolyuk testified is available at any corner store, in an effort to cast Rukh in an anti-Semitic light. Also, it is unlikely that such an attack would have occurred in Kharkiv. Kharkiv is a largely Russian area, so it would not make sense for Rukh to alienate its base of potential members by attacking people partly because of their Russian ethnicity. Lastly, even if the attackers were members of Rukh, it does not mean that they were acting on behalf of Rukh. The UABA brief compares the court's decision to labeling the Democratic Party in the United States as racist because a few party members committed violence against African Americans.

The UABA brief also expresses concern that, although the court cited the Country Reports on Human Rights Practices for 1996 to show that Jews had received death threats in Kharkiv, it did not mention that no Country Report has ever accused Rukh of anti-Semitism. The UABA also wrote that it knows of no human rights organization that has made such a characterization.

The UABA argues that labeling Rukh as anti-Semitic is antithetical to the real nature of Rukh. Formed by members of the Ukrainian Helsinki Group and what the brief refers to as the cultural intelligentsia, Rukh's purpose was the democratization of the Soviet Union and, later, the independence of Ukraine.

The Rukh program that appeared in Literaturna Ukraina on February 16, 1989, clearly demonstrates that the fundamental ideology of Rukh opposes anti-Semitism:

"The Popular Movement [Rukh] of Ukraine for Perebudova [perestroika, restructuring] is a mass voluntary organization based on the patriotic initiative of the citizens of the Ukrainian SSR - Ukrainians, Russians, Jews, Bulgarians, Hungarians, Poles, Moldavians - of all nationalities living on Ukrainian territory. ...

"The main goal of the movement is to assist the Communist Party in the creation and functioning of the democratic mechanism and the promotion of societal development. The democratic mechanism is to be founded on genuine people's power and on a balanced economy. The movement opposes any infraction in the social, political, national and ecological rights of the individual. The movement aspires to raise the level of consciousness, the political culture and the public activism of the Ukrainian nation [narod] and of all the nationalities living within the Ukrainian SSR; to revive and consolidate national awareness and internationalist convictions in all the republic's citizens. The movement will vigorously oppose any attempt to assimilate any national minority living within Ukraine. It will support the development of the culture and education of every single minority. In areas in which minority populations are highly concentrated, the movement supports minority self-government. The movement condemns all propaganda of national annihilation and nihilism as amoral and inhuman. ...

"Repressions of any kind - for political, social, racial, national or religious reasons - are inadmissible.

"The movement defends the people's right to espouse any religious faith or to be non-believers, to take part in religious services or to propagate atheism."

This commitment to the rights of minorities continues to this day, the UABA argues. The UABA brief cites Prof. Taras Kuzio as writing of the Our Ukraine election bloc, a successor to Rukh: "Our Ukraine supports the Jewish former mayor of Odesa, Eduard Hurfits, who is now running on the Our Ukraine party list. In mid-March, Our Ukraine condemned anti-Semitic leaflets that had been circulated against Hurfits. Our Ukraine's party list also includes Crimean Tatars and ethnic Russians."

The UABA brief even questions the characterization of Rukh as being "nationalist," quoting again from Prof. Kuzio: "Center-right parties, such as Rukh, should not be defined as 'nationalists' but as center-right conservatives or republicans. Their nationality policies are far more liberal than those commonly found among center-right parties in liberal democracies (which makes their definition as 'nationalists' difficult to square)."

The UABA states that it is also difficult to reconcile the court's characterization of Rukh as a persecutory organization whose members can be automatically barred from receiving asylum with the respect United States officials exhibited for Mr. Chornovil, the leader of Rukh, after his death.

President Bill Clinton wrote to Atena Pashko, Mr. Chornovil's widow: "It was with great sorrow that I learned of the tragic death of your husband, Vyacheslav Chornovil. He elicited our greatest respect for his courageous defense of human rights and the hardships he endured during the Soviet period.

"Mr. Chornovil was also much admired for his devotion to the task of building a democratic Ukraine. He will be well and long remembered for his contributions to his people and to the cause of freedom in Ukraine," he noted.

Similar statements, the UABA adds, were issued by former U.S. ambassadors to Ukraine Steven Pifer and William Green Miller.

Hopes of influencing the BIA

As Mr. Michniak emphasized, the UABA cannot have the decision characterizing Rukh as an anti-Semitic organization overturned, since it has already become precedent. However, in filing the amicus curiae brief, Mr. Michniak said it is possible to convince the BIA that the characterization of Rukh as anti-Semitic and persecutory should not be applied to the case of Mr. Bolyuk, since the prior characterization was limited to the facts of the case of the Jewish father and son. The BIA might be persuaded that the attacks on the father and son notwithstanding - even if these were indeed perpetrated by Rukh members in the name of Rukh - that Rukh itself did not sanction the attacks and Rukh's ideology is opposed to such acts.

The UABA president said he hopes the BIA decides that the immigration court should not have focused so much attention on Mr. Bolyuk's involvement in an allegedly persecutory group. After all, he went into the court seeking asylum for persecution and left trying to demonstrate that he himself was not involved in persecution. The UABA wants to make sure that no one can be labeled a persecutor based on membership in Rukh alone without specific evidence regarding the case at hand. The action of the UABA is specifically limited to the case of Mr. Bolyuk, but a decision of the BIA regarding the issues raised in amicus brief could become precedent if the BIA so chooses, Mr. Michniak noted.

The UABA brief will also provide the courts with information in their libraries that they can reference should they ever need information on Rukh. This is important, since the characterization of Rukh as anti-Semitic is applicable not just to asylum cases, but could also be used to deny immigrants residence in the United States.

Unfortunately, the UABA was not able to file an amicus brief earlier when the "Matter of O-Z & I-Z" was being reviewed by the BIA in 1998, Mr. Michniak said, because it is difficult to find out about such cases. Generally they are publicized only after the decision is published. At that point it is not possible to have any input on the case since it has already been decided. The UABA was able to find out about Mr. Bolyuk's case because a member of the UABA Board of Governors knew the attorney representing Mr. Bolyuk in Connecticut.

The UABA has been involved in asylum cases in the past, most notably when Ukrainian sailor Myroslav Medvid was sent back to the USSR after twice applying for asylum in the United States. The UABA sued the United States secretary of state for his handling of the matter.

In addition to such legal action, the UABA - an organization of Ukrainian American attorneys, judges and law students - organizes conferences, provides opportunities for networking, and awards scholarships to law students. The association also assists the U.S. government and private foundations who are trying to implement rule of law projects in Ukraine, as well as establishing contacts between members of the legal profession in the United States and Ukraine.

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