NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 26, 2008*
Decided March 31, 2008
Before
RICHARD A. POSNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
TERENCE T. EVANS, Circuit Judge
No. 07‐2610
NATALIA KOUTCHER and Petition to Review an Order of the Board
OLEXANDER KOUTCHER, of Immigration Appeals.
Petitioners,
Nos. A73‐428‐841 & 842
v.
MICHAEL B. MUKASEY, Attorney
General of the United States,
Respondent.
O R D E R
Olexander and Natalia Koutcher applied for asylum in 1996 after they and their
daughter—all citizens of Ukraine—arrived in the United States on visitor visas. The
Koutchers claimed that they had been persecuted in Ukraine because they are Jewish, and
likely would be killed if they returned. An immigration judge (“IJ”) denied their
application, and the Board of Immigration Appeals (“BIA”) upheld that decision. Almost
*
We grant the petitioners’ unopposed motion to waive oral argument. Thus their
petition is submitted on the briefs and the record. See Fed. R. App. P. 34(f).
No. 07‐2610 Page 2
two years later the Koutchers filed a motion with the BIA to reopen the proceedings,
claiming that the attorney who represented them at the removal hearing rendered
ineffective assistance of counsel. The BIA denied the motion as untimely. Because the BIA
did not abuse its discretion in denying the motion to reopen, we deny the petition for
review.
In April 1998 the Koutchers hired attorney David Butbul to represent them during
the removal proceedings. After a series of continuances, the removal hearing was
conducted in July 2003. At the hearing Butbul told the IJ that there was no need for the
Koutchers to give extensive testimony because their asylum application was elaborate and
well‐supported by documentation. The IJ agreed, and asked the Koutchers only a short
series of questions to confirm that they stood by the statements in the asylum application.
The IJ also gave them a chance to add to or change anything in their written statements, but
they declined.
In September 2003 the IJ issued a written decision in which she credited the
Koutchers’ accounts of being harassed and attacked by an ultra‐nationalist group called the
Ukranian People’s Self‐Defense Organization (“UNSO”). Specifically, the IJ noted that
UNSO members had demanded that the Koutchers close their small business and had sent
them threatening letters filled with epithets deriding their Jewish nationality. When the
Koutchers refused to shut down their business, UNSO members confronted Natalia as she
was leaving her office and beat her, bruising her face. Not long after, UNSO members
severely beat Olexander and he fled to the United States. After Olexander’s departure
UNSO members told Natalia that if she did not leave, they would harm her daughter.
Natalia and her daughter went into hiding, and then fled to join Olexander in the United
States.
Although the IJ concluded that the threats and attacks the Koutchers described “may
rise to the level of persecution,” she stated that the Koutchers had not shown that the
government was unwilling or unable to protect them. The IJ also noted that recent country
reports for Ukraine showed that there had been an increase in government action against
anti‐Semitism and a resurgence in Jewish religious and cultural institutions. The IJ further
observed that the country reports showed that anti‐Semitism is generally confined to
western Ukraine, and so the Koutchers could relocate to avoid persecution. Accordingly,
the IJ denied the asylum application.
The Koutchers’ appeal to the BIA was affirmed in January 2005. Four months later
the Koutchers hired a new attorney, Y. Judd Azulay, to seek further review in this court.
Azulay filed a petition for review, but later dismissed it voluntarily after he and the
Koutchers decided that their better option was to file a motion to reopen in the BIA based
No. 07‐2610 Page 3
on what the Koutchers perceived to be deficient performance by Butbul. Then in July 2006,
before Azulay filed the motion, the Koutchers received notice that their removal was
imminent. That notice prompted them to hire their current attorney, Brent Newcomb, to file
the motion to reopen. After taking the procedural steps required by In re Lozada, 19 I. & N.
Dec. 637, 639 (BIA 1988), Newcomb filed with the BIA in October 2006 a motion to reopen
claiming that Butbul had deprived the Koutchers of the opportunity to present “substantive
testimony” during their removal hearing. Newcomb did not say what other information the
Koutchers would have added to their asylum application had they testified at greater
length.
The BIA determined that the motion to reopen was untimely, and found that
equitable tolling of the deadline was unwarranted. The BIA also concluded that the
Koutchers could not prevail on the merits of their ineffective‐assistance claim because they
had not shown that they were prejudiced by Butbul’s performance. In particular, the BIA
noted that the Koutchers had not identified any evidence omitted by attorney Butbul that
would have refuted the IJ’s finding that they could safely relocate within Ukraine.
In their petition for review the Koutchers argue that the BIA abused its discretion in
refusing to apply the doctrine of equitable tolling to their untimely motion. A motion to
reopen based on ineffective assistance of counsel must be filed within 90 days of a final
administrative decision. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). This is not a
jurisdictional limitation, so the BIA might have excused their tardiness if the
Koutchers—despite exercising due diligence—could not have discovered within the filing
deadline essential information for their claim. See Gao v. Mukasey, No. 06‐4431, 2008 WL
638061, at *1 (7th Cir. March 11, 2008); Johnson v. Gonzales, 478 F.3d 795, 799 (7th Cir. 2007);
Pervaiz v. Gonzales, 405 F.3d 488, 490 (7th Cir. 2005). The Koutchers claim that they were
injured by Butbul’s performance at the 2003 removal hearing, but they did not file their
motion to reopen until October 2006. The latest they could have discovered that injury was
January 24, 2005—the day that the BIA dismissed their appeal. Thus equitable tolling could
not help them; they discovered the injury the same day that the 90‐day filing period began
to run. And they cannot blame Azulay’s foot‐dragging for their late filing—by the time they
hired Azulay in May 2005, the 90‐day period had already run out.
In any event, the BIA did not abuse its discretion in concluding that the Koutchers
had not shown—as they must, see In re Assad, 23 I. & N. Dec. 553, 562 (BIA 2003)—that they
were prejudiced by Butbul’s decision to limit their testimony at the removal hearing. As the
BIA pointed out, the IJ believed the Koutchers’ story of persecution, but found that they
could avoid future persecution by relocating within Ukraine. To establish that they were
prejudiced by Butbul’s decision to limit their testimony, it would have been necessary for
the Koutchers to show that the excluded “testimony would have added something that was
No. 07‐2610 Page 4
otherwise missing from the record,” such as facts contradicting the IJ’s belief that they could
safely relocate within Ukraine. See Hamid v. Gonzales, 417 F.3d 642, 646 (7th Cir. 2005). But
nowhere in their motion to reopen or in their brief to this court have the Koutchers
described any specific evidence that Butbul prevented them from presenting at the removal
hearing, let alone evidence that would have contradicted the IJ’s finding. Accordingly, the
petition for review is DENIED.