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American Limbo 

Beatings forced Konstantin Daviskiba to flee Ukraine for America. But it's taken nearly 10 years for the U.S. to decide if he can stay.

When the student protesters started their hunger strike and raised their tents at the square in front of the Lenin statue in Kiev, Konstantin Daviskiba felt compelled to be there. He was 32, and he'd been rebelling against the Soviet Union's Communist government since he was the students' age.

It was 1990, a year after the Berlin Wall fell, and Ukrainians were openly defying the regime, demanding that their hard-line prime minister resign to make way for reformers who would challenge the central government in Moscow. That October, Daviskiba went to the square in the Ukrainian capital regularly, sleeping in a tent some nights. Several hundred people crowded around the protesters every day, talking excitedly but nervously about what would happen next in the Soviet Union.

It was a new, uncertain era, when the government was allowing citizens to protest instead of squelching them with tanks and police. Leonid Kravchuk, a Communist Party leader and chairman of the Supreme Soviet of Ukraine, even came out to the square and tried to talk the protesters into going home. But Daviskiba still noticed an ominous presence.

"We were heavily surrounded the whole time by KGB, police," he recalls. "They always recorded everybody." He could spot the agents among the crowds of photojournalists and TV cameramen: They were the "slippery"-looking ones, more interested in shooting as many faces as possible than framing an interesting picture.

One night, he left the protest and headed home on the subway. When he got to his stop, Bolshevik Station, and rode up the escalator, he saw three men walking toward him.

Suddenly, two of them hoisted up the man in the middle, who swung out and kicked Daviskiba in the stomach with both feet. He fell to the ground, and the three men pushed him into a secluded corner, where they viciously kicked and punched him. "I wasn't able to see. It was just shock. They started beating me so brutally, you can't even imagine . . . In a moment, I just think, that's it, I'm dying."

One of the men tore Daviskiba's lip open, probably with a metal object. They didn't rob him, and they never said a word. People walking by were too afraid to stop the attack.

"They beat me, I don't know how long it took, maybe two minutes, maybe three minutes, maybe more. I don't know how, I managed to roll over to the area where people [were walking]. And then they disappeared."

The police post inside the subway station, which was always supposed to be manned, was empty. So Daviskiba fled for home. When he looked in the mirror, he didn't recognize himself: His face was red and bleeding, his lip was sliced as if by a razor, and stubs of broken teeth hung in his mouth.

A friend took him to the hospital to get stitches, and the next day a dentist replaced the broken teeth with dentures. He still has a scar on his lip and can feel a lump inside it.

It was the second time he had been beaten that year. The first time, two men had assaulted him while he was walking on his street. This time, there was no doubt in his mind: It was the police or the KGB, punishing him for being a protester and a member of Ukraine's nationalist Rukh movement.

Soon after the attack in the station, Daviskiba left for the United States. When he heard about the brutal repression of the Lithuanian independence movement in January, he decided to stay.

This fall, almost 10 years after he left Ukraine, a U.S. immigration officer finally interviewed him about his application for political asylum. His case was strong when he arrived. Now it's not so clear.

Daviskiba is one of hundreds of thousands of people who have come to the United States seeking refuge and found the door neither open nor closed. He's spent the last decade in limbo, his case caught in an overstressed, underfunded immigration system.

In a way, he and his wife, Luba Bilak, are lucky. They've been able to work and start a new life in the U.S., and a three-year-old law may well let them stay here, even if his asylum petition is turned down.

But the twists and turns of asylum law may still break their hearts. Bilak hasn't seen her son, Maxim, who still lives in Ukraine, for eight years. If her husband's asylum application is approved in the next month, they may be able to bring Maxim to the U.S. But in January, he turns 21. If Daviskiba is granted asylum after that, it won't apply to his stepson.

"All we need, we need freedom. And our family together," Daviskiba says. "The rest, we take care of."

The odds are they'll get one of their wishes, but not both.


In his old Soviet passport photo, Konstantin Daviskiba wears severe, dark-rimmed glasses and a deep frown. You can see the dark presence of oppression in the stark black-and-white photo and the look on his face. The camera even made his hair look black, though it's always been blond.

Luba Bilak's passport shows a pretty blond woman in her mid-20s staring almost as unhappily at the photographer. On another page is a photo of a cute little boy with dark hair and eyes -- Maxim, added to her passport so he could join her on a long-ago trip to Bulgaria.

Today Daviskiba looks like a different person: He has less hair and a crooked smile he flashes in the restaurant he and his wife own. He speaks English with an American casualness (he uses the words "guys" and "stuff" a lot) that seems more dramatic when spoken with a growling Slavic accent. But despite getting a word or two wrong or out of place, he's well-spoken, even eloquent.

His wife is easy to recognize from her photo, though she looks older and has grown her hair long. One minute, her face is somber, as it was in the old picture; the next minute, she smiles brightly. She speaks in sentence fragments and jumbled phrases, but she gets across what she wants to say.

The couple live in Northfield, and they work at Thistledown Racetrack in North Randall, running the track kitchen inside a little gray building behind the horse stables, next to the racetrack's big curve. Seven days a week, they serve meals to horsemen, maintenance workers, and security guards. They open their cafeteria-style restaurant at 5:30 a.m., and they work 14-hour days, except on Tuesday and Thursday, when the horses don't run and the kitchen closes at noon. "Luba's Kitchen," reads one sign on the wall. "Welcome to America. Now speak English," reads another.

Behind the counter, they keep a picture of Maxim, taken when he was 16. They've named their business Kolumax Corp., combining their first names with his. For a while, they had two employees, but for now they're doing all the work themselves.

"We wait for son," Bilak says. "Family business."

How they got here and how they ended up waiting years to find out about their future is a story that goes back to when Daviskiba was a curious, rebellious teenager in school in Kiev.


At 14, Daviskiba was asking his Communist-indoctrinated history teacher questions he couldn't get answers to: What caused the Ukrainian famine in 1933? Whatever happened to Trotsky? What was the pact between Stalin and Hitler all about?

By the time he got to college in 1975, he'd been listening to Radio Liberty and Voice of America, and he wondered aloud to his classmates why the Soviet government kept trying to jam the signals. He couldn't quite understand what the announcers meant when they talked about free markets, but he understood what it meant "if you have the right to talk free."

He spent the summer after his first year of college doing construction work in Kiev with students from Eastern Europe. The month and a half they worked together was full of excited conversation and quick-to-form friendships. It would change his life and his opinions forever.

The Slovaks told him the truth about the Prague Spring in 1968: how the Soviet Union had sent tanks to end Czechoslovakia's move toward freedom. Daviskiba was shocked. He'd been taught that the Soviet Union had saved Czechoslovakia from a capitalist coup.

"Working together, talking about it, I learned totally different stuff!" His voice rises, turning high-pitched, the anger from 24 years ago flowing through him again. Learning the real story, he says, "was a final step which destroyed in me everything connected with socialism and the Soviet Union."

But one of the quiet students listening to the conversations reported him to a school official, who called him into his office and grilled him for two hours about his political opinions: what he thought of the Voice of America, of the dissident Andrei Sakharov. The official offered a warning: If he didn't keep quiet, he'd be thrown out of college.

Daviskiba began to hold his tongue. But two years later, officials summoned him again. They told him that, if he wanted to go through military education -- a requirement for graduation -- he had to cease all contact with foreigners. He was not only corresponding with his Slovak friends, but with Western pen pals he'd found through ads in soccer magazines. He refused to stop writing them. He soon dropped out of school.

His parents, who had always been quiet about politics, started to reveal their true feelings about the Communist regime. Slowly, when they saw his opinions weren't going to change, they opened up about family secrets. They told him how the Communists created the 1933 famine by collectivizing Ukrainian farms -- taking away farmers' harvests -- and how his family survived.

"My grandfather . . . managed to hide some part of the harvest. He expected that stuff to happen. That's the way they survived the winter. All the houses around, everybody died." His family shared some of their stockpile with neighbor children, but there wasn't enough food to save their parents.

Daviskiba's resolve to defy the Soviet system deepened. He joined the Ukrainian Catholic Church, not for spiritual reasons, but because it was an underground organization standing up to Communism. In 1984 his nephew, a soldier, was beaten to death after complaining about the torture he saw in the army. Daviskiba and his family wrote letters of protest to the government about his death. His parents were soon fired from their jobs.


In 1985 Daviskiba met Luba Bilak in a park near his apartment.

"The first day, he asked me to marry him," she says. "[I said,] 'Excuse me, you don't know nothing about me, you don't know I have a kid.'" She was widowed and had a young son.

"It took us six months," Daviskiba says.

But he and his wife fought over his activism. In the late 1980s, he joined the Ukrainian-nationalist Rukh movement, emboldened by Mikhail Gorbachev's reforms, but dissatisfied with "half-freedom and half-rights." By 1990, he was attending meetings and protests, and passing out newspapers.

His marriage started to fall apart. "I wasn't able to pay too much attention to my family, maybe like she thinks I was supposed to, because I've got meetings, I've got demonstrations," he says. But it was a time of crisis, and Daviskiba couldn't give up the fight for freedom.

"You can't build your family if you can't build your state," he says.

"I was too far from political," his wife says now. Her family was worried his protests would get him in trouble.

She asked him for a divorce. He refused to go to the courthouse with her, but he signed the papers to allow it to go through.

In August 1990, Daviskiba joined a huge nationalist rally in front of Kiev's KGB building, where he befriended the head of the Ukrainian Republican Party. The protesters watched as KGB agents stood next to the building and filmed them.

Several days later, he was walking down his street when two men came up to him. One asked him for a cigarette. He told them he didn't have one, and without another word, they beat him. He thinks they were attacking him for being involved in Rukh, but he doesn't know for sure.

The second beating, in the subway station, convinced him he was being targeted. The three men came at him as though they had been waiting for him. The attack, in the middle of a crowd, was too bold. And because it was the only time he'd ever seen the nearby police station empty, he figured the police had to be involved.

He was one of several Rukh activists punished after the October protests. "What I heard when I called later, a lot of people who participated was either fired from college or from work. A lot of them was arrested. Some of them disappeared."

When he left on a trip to the United States in December, he thought he'd just see some friends and stay a few weeks. But in January, Gorbachev sent tanks into Lithuania to crush the independence movement there.

"What he did in the Baltic republics was a clear message for me --it's going to happen everywhere, at any time," Daviskiba recalls. He stayed in the U.S. until spring, not sure whether to go home. News from Moscow convinced him that Gorbachev was struggling to hold onto power and that the hard-line Communists would try to take over. In June 1991, just before his visa expired, he applied for political asylum.

On the day he set foot in the U.S., Daviskiba was probably a strong candidate for asylum. But back then, the Immigration and Naturalization Service was taking years to interview asylum-seekers. Two months after Daviskiba applied, Communist hard-liners launched their coup attempt against Gorbachev. But once the coup failed, the Soviet Union quickly dissolved. By September, Leningrad was renamed St. Petersburg, and Ukrainians were calling each other "sir" instead of "comrade." By 1992, Ukraine was an independent country.


But Daviskiba wasn't about to go back to Kiev. Too many Communists still held power in the Ukrainian government. Kravchuk, the Communist official who had tried to convince the hunger strikers to end their protest, was the new president.

People were knocking on the door of his parents' house, sometimes in the middle of the night, claiming to be his friends and asking when he was coming home, but never giving their names. Letters he wrote complaining about the Ukrainian government never reached his family. It sounded as if someone else was on the line when he called home. When he started talking politics, the line would go dead.

Meanwhile, there was no news about Daviskiba's asylum case. His attorney in New Jersey told him there was nothing he could do but wait for the INS to work through its backlog.

So he stayed in the United States and moved to the Cleveland area in 1992. His first job in America was at a Pizza Hut. Soon, his ex-wife came to the U.S. to see him.

"We spoke a lot over the phone after I left and decided to stay in the United States," he says. "We got agreement to try it again."

Bilak's mother told her she would take care of Maxim while she went abroad. Back then, Daviskiba thought he'd have an answer from the INS in two or three years.

"I'd never not leave my son like that if I knew it would take so long," Bilak says.

They remarried in early 1993, and they started working together in restaurants. She became a chef and he a manager at a restaurant in Sagamore Hills.

Bilak is also scared to go back to Ukraine. For years, the police officer in her family's neighborhood asked about her. Her husband, with his better command of English, tells the story:

"He always [said,] 'If she's not coming back, that means she's traitor.'" Once, the officer added that, if she did come back, the police would make sure she never left again.

Then, about four years ago, an explosion woke her family in the middle of the night. Someone had blown up a door in the hallway of their apartment complex, in a corridor they shared with only one other family. No one was hurt, but they were afraid it was a message to them.

Daviskiba and Bilak admit their families have faced less harassment in the last year or so. But they say Maxim is still ostracized because his parents live in the United States. Neighbors call him the son of a traitor; they blame anti-Communists like his stepfather for the country's awful economic conditions. He has few friends, and he mostly stays home, working on his computer.

And Daviskiba is still afraid of being targeted if he goes back to Ukraine. He says too much of the Soviet system is still in place, that ex-Communists keep anti-Communists out of most jobs, and that the government, police, and mafia work together to intimidate opponents.

Ukraine today is a country in a gray area: part democracy, part a chaotic place where the rule of law can't be counted on. The U.S. State Department's latest human rights report on the country is mixed. It found no examples of political killings by government agents or politically motivated disappearances in 1999 -- but it adds that some contract killings may be political, since links between government and organized crime "often blurred the distinction between political and criminal acts." The current president, Leonid Kuchma, a centrist supporting moderate economic reform, was reelected last year, but the Committee to Protect Journalists named him the world's No. 6 "enemy of the press" for using tax and libel laws and "tacit acceptance of violence against the press" to quiet opposition media. A 1998 poll found that only about half of Ukrainians believed people could freely express their opinions there.

Daviskiba has trouble sleeping sometimes, because he has nightmares about having to go back to Kiev. In the dreams, he feels an overwhelming, lonely confusion. "I have no friends, I have nobody there left," he says.

The nightmares occurred almost every night when he first came to the U.S., then gradually went away. But lately, they've returned.

In September Daviskiba finally had his interview with the INS. He and his wife traveled to Chicago and spent almost all day talking to an asylum officer. Before a break, the officer told them he'd probably make a decision that day. They were excited, thinking they'd leave with permission to stay in America for good. But when they returned from the break, they were told by the officer that an answer would take another month.

Over the phone, Maxim tells his mother he's excited to come to the U.S. He makes money installing satellite dishes, and he's installed one for himself, so he can learn about America from TV.

But the longer it takes to get an answer from the INS, the less chance that the family will be reunited anytime soon.

"How do I feel, waiting? Horrible," Daviskiba says. "When you just waiting, you don't know where are you, how are you."

"We're looking every day in the mailbox, and no answer," Bilak says.


Daviskiba's plea for asylum got lost in a deluge of cases. In the late 1980s and early 1990s, Central Americans fleeing civil wars clogged immigration offices, joining refugees from Communist nations and other parts of the world, all pleading for refuge.

The INS was understaffed and overwhelmed. It created a specialized asylum corps to handle the flood, but progress was slow.

"Cases we filed in 1991 and 1992 were boxed up from local offices and moved to Chicago," says Karen Meade, a Cleveland attorney who is chairwoman of the Ohio chapter of the American Immigration Lawyers Association. "Those cases have been sitting in file boxes for years."

By 1995, almost a half-million asylum-seekers were waiting for decisions. To dig itself out of the hole, the INS announced it would decide all new asylum cases within six months. But that left Daviskiba, and everyone else in the backlog, waiting even longer.

At the end of 1999, 340,000 asylum-seekers were still in limbo. Many had fled wars that have ended and dictators who have been deposed, so their cries for refuge no longer hold the same power. More than 178,000 cases are from El Salvador alone, where a civil war ended in 1993. Asylum-seekers need to show they have a "well-founded fear" of persecution -- but that's evaluated against conditions in their home country when they're interviewed, not when they applied.

So, ironically, some aren't in a hurry to get a hearing. "This backlog works to the benefit of some people and to the detriment of other people," says Robert Esbrook, director of the INS Chicago asylum office. "To those people who have not very strong asylum cases, it's kept them from any type of deportation proceedings."

Meade has Peruvian clients in Cleveland who fled the Shining Path guerrillas years ago. The Shining Path has since been defeated, but Peru isn't entirely stable, so many of her asylum clients are still here, seeking residency in other ways.

Because asylum officers visit Cleveland only a few times a year, applicants here can still wait a long time for interviews. But Esbrook says the INS is whittling away at the backlog. "Anyone [who] has not been interviewed and who notifies us that they're willing to come to Chicago, we will interview within probably two to three weeks from their call," he says.

That's what Konstantin Daviskiba did this year -- after figuring out that he could apply for a second kind of relief, in case his asylum claim is rejected. (He got his interview about three months after requesting it.)

To help people caught in the backlog, Congress passed the Nicaraguan Adjustment and Central American Relief Act, or NACARA, in 1997. People from the former Soviet Union or parts of Central America who've been waiting at least seven years for an asylum decision can now apply for a green card. The INS began hearing NACARA cases last year.

So this year, Daviskiba's attorney, Richard Herman, asked the INS to interview Daviskiba about asylum and NACARA relief at the same time. And Herman asked for emergency processing, because Maxim turns 21 in January. If Daviskiba gets asylum before then, it'll apply to Maxim, too. But if he gets only a green card, Maxim will need a visa -- and the average wait for one, Herman says, is six and a half years.

By waiting until he could also be interviewed for NACARA, Daviskiba greatly increased his chances of staying in the U.S. Esbrook says his office has approved 99 percent of the NACARA claims it has heard. But the INS granted only 31 percent of the Ukrainian asylum applications it ruled on last year.

"If you're a Ukrainian in the pre-reform backlog, maybe you've been there so long, the actual basis of your fear disappeared over the course of time," says Esbrook. His office has dealt with several Ukrainian anti-Communists who fear persecution by Communists still in the government. "That is a very weak claim at this particular time," he says bluntly.

Asylum-seekers from some countries have much better odds than others. Over 80 percent of applicants from Afghanistan got asylum from the U.S. last year, and Cubans had a 76 percent chance of success. Chinese had a 24 percent chance; Haitians less than 8 percent.

Some say that's a simple reflection of the conditions in those countries today. But attorneys and activists say U.S. foreign policy colors asylum decisions. People from countries like Afghanistan and Cuba, with which the U.S. has running disputes, can usually get asylum easily, they say, while those from countries friendly to the U.S. have a harder time.

"Asylum is very political," says Karen Meade. "As our foreign policy changes, so do our asylum laws. With the fall of Communism in Eastern Europe back in the early '90s, our policy toward accepting refugees from those areas changed almost overnight." Nonetheless, Meade says she hasn't heard many reports of persecution by the Ukrainian government recently.


A month and a half went by after Daviskiba and Bilak's Chicago interview. Their attorney started making phone calls and sending a new round of urgent letters, asking for an immediate decision and reminding the asylum office that Maxim was about to "age out" -- i.e., turn 21.

Two months after the interview, a letter came. The INS needed to gather more information about the couple. It didn't say what information or when there would be a decision.

The letter also gave Daviskiba a choice his attorney calls Kafkaesque: It said that, if he wanted an immediate decision on his asylum application -- the one that would give Maxim permission to come here -- he'd have to drop his NACARA claim, since it has to be judged first.

It's a high-risk dilemma: "Withdraw your NACARA, which has a high, high probability of success," says Richard Herman, "and then [the INS] can go ahead and look at your asylum case, which has a much lower probability of success."

Daviskiba says he won't withdraw his NACARA application. It's full of evidence of what the INS calls "good moral character" -- proof that, for 10 years, he's made positive contributions to America. The file includes letters from friends at the racetrack, testifying to his and his wife's kindness, hard work, and generosity.

"If I take this application away, I take all this information away," he says. "That's it, I just killing myself. I can't do that."

He looks at the calendar on his restaurant wall. Below a picture of two horses, most of the days in November are crossed out. He talks about the other paperwork that would have to be processed by Maxim's birthday, even if his asylum application were approved.

"We have basically no hope to bring him here before he turns 21," he says. A few minutes later, he adds, "Maybe there's still a little chance."

Bilak called her son and mother to give them the news. Her son is usually the anxious one, and Bilak tells him to be patient. But this time, she was so upset, her son had to calm her down. "He said, 'Don't make yourself say you don't want NACARA. You be legal in America, you get green card, that'd be better. [Then I'd] know for sure I come to America.'"

Someday, that is. Rather than wait seven years for him to move here, Daviskiba and Bilak now say they'll look into whether there's a chance for Maxim to come to the U.S. temporarily as a student.

What could be holding up Daviskiba's application? Robert Esbrook at the asylum office is not allowed to comment on individual cases, but he says "something extraordinary" must be the problem. "[If] it's an age-out case and we know time is of the essence, it must be something important, or we would not stop processing the case."

Esbrook says most NACARA applications that aren't approved right away are short on documentation about the applicants' lives in the U.S. -- whether they've paid their taxes regularly, followed U.S. law, become part of the community. The INS could be checking Daviskiba's credibility, looking for court records, conducting a security check, or confirming its information about his family.

"It's not a matter of bureaucratic bungling," he insists. Yet he can't explain why his office must decide Daviskiba's NACARA claim before his asylum claim. The letter to Daviskiba says the agency's "current guidelines" require it to decide in that order. But Esbrook says he doesn't know of any such rule.

A few days after Scene talked to Esbrook, Esbrook called Richard Herman to talk about Daviskiba's case.

"He said, 'Let's try to get to the bottom of it,'" Herman reports. "It looks like he's going to go ahead and approve NACARA. He did indicate that the asylum case is probably going to be denied."

That made Herman mad. He replied that the INS would have decided Daviskiba's case differently, and allowed Maxim to join his parents, if it had decided the case in 1991 or 1992. "You guys have prejudiced his rights," Herman says he told Esbrook.

As the INS hesitates over his file, Daviskiba hopes the government will consider the risks he took for freedom.

"This is my country," he says. "I'm 42 years old. Ten years, I live here. That's half my life as an adult. I speak more English than my own language. All my friends are here.

"This country is everything for me now."

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