13-322
Kuzmenko v. Holder
BIA
Vomacka, IJ
A075915484
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 17th day of September, two thousand fourteen.
5
6 PRESENT: DENNIS JACOBS,
7 CHRISTOPHER F. DRONEY,
8 Circuit Judges,
9 LEWIS A. KAPLAN,*
10 District Judge.
11
12 - - - - - - - - - - - - - - - - - - - -X
13 PETRO PETROVICH KUZMENKO, AKA MIKOLA
14 ZAVGORODNIY, AKA NICOLAI IVANOVICH
15 ZAVGORODNIY
16 Petitioner,
17
18 -v.- 13-322
19
20 ERIC H. HOLDER, JR., UNITED STATES
21 ATTORNEY GENERAL,
*
Judge Lewis A. Kaplan, of the United States
District Court for the Southern District of New York,
sitting by designation.
1
1 Respondent.
2 - - - - - - - - - - - - - - - - - - - -X
3
4 FOR PETITIONER: Petro Petrovich Kuzmenko, Pro
5 Se, Brooklyn, New York.
6
7 FOR RESPONDENT: Stuart F. Delery, Acting
8 Assistant Attorney General;
9 Anthony C. Payne, Senior
10 Litigation Counsel; Jem C.
11 Sponzo, Trial Attorney, Office
12 of Immigration Litigation,
13 United States Department of
14 Justice, Washington, D.C.
15
16 UPON DUE CONSIDERATION of this petition for review of a
17 Board of Immigration Appeals (“BIA”) decision, IT IS HEREBY
18 ORDERED, ADJUDGED AND DECREED that the petition for review
19 is GRANTED IN PART and DENIED IN PART.
20
21 Petitioner Petro Petrovich Kuzmenko, a native and
22 citizen of Ukraine, seeks review of a January 7, 2013 order
23 of the BIA, denying his due process challenge and affirming
24 the June 13, 2011 decision of an Immigration Judge ("IJ"),
25 which denied his application for asylum, withholding of
26 removal, and relief under the Convention Against Torture
27 ("CAT"). In re Petro Petrovich Kuzmenko, No. A075 915 484
28 (B.I.A. Jan. 7, 2013), aff'g No. A075 915 484 (Immig. Ct.
29 New York City June 13, 2011). We assume the parties'
30 familiarity with the underlying facts and procedural history
31 in this case.
32
33 We review the IJ's decision as supplemented and
34 modified by the BIA, i.e., minus the arguments for denying
35 relief that were rejected or not explicitly relied on by the
36 BIA. See Xue Hong Yang v. U.S. Dep't of Justice, 426 F.3d
37 520, 522 (2d Cir. 2005). The applicable standards of review
38 are well established. See 8 U.S.C. § 1252(b)(4)(B); see
39 also Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.
40 2009).
41
42 The agency found that Kuzmenko's particular social
43 group of persons who had cooperated with the FBI against the
44 Ukrainian mafia lacked the requisite social visibility
45 because an informant's cooperation is not generally
46 identifiable by other persons. This finding appears to
2
1 reflect a literal approach to the social visibility
2 requirement. See Matter of C-A-, 23 I. & N. Dec. 951, 960
3 (B.I.A. 2006) (finding that a group of confidential
4 informants against a drug cartel lacked social visibility
5 because "[i]n the normal course of events, an informant
6 against the . . . cartel intends to remain unknown and
7 undiscovered [and r]ecognizability or visibility is limited
8 to those informants who are discovered because they appear
9 as witnesses or otherwise come to the attention of cartel
10 members"). Subsequent to the agency's decision in this
11 case, however, the BIA clarified that the social visibility
12 requirement does not mean literal or "ocular" visibility but
13 rather that "the relevant society perceives, considers, or
14 recognizes the group as a distinct social group." Matter of
15 W-G-R-, 26 I. & N. Dec. 208, 211-12, 216-18 (B.I.A. 2014);
16 accord Matter of M-E-V-G-, 26 I. & N. Dec. 227 (B.I.A.
17 2014). The BIA has also recast "social visibility" as
18 "social distinction." Matter of W-G-R-, 26 I. & N. Dec. at
19 212. Without endorsing or opining on that change in
20 position, we conclude that remand is appropriate for
21 application of the social distinction requirement in the
22 first instance. See Matter of M-E-V-G-, 26 I. & N. Dec. at
23 252 (remanding to the IJ for consideration of petitioner's
24 particular social group under the clarified social
25 distinction paradigm).1
26
27 As to another of Kuzmenko's arguments, the BIA did not
28 err in rejecting the due process challenge to the purported
29 misconduct of the Department of Homeland Security's ("DHS")
30 counsel in preventing his witness from testifying. See
31 Garcia-Villeda v. Mukasey, 531 F.3d 141, 149 (2d Cir. 2008)
32 (noting that "[p]arties claiming denial of due process in
33 immigration cases must, in order to prevail, allege some
34 cognizable prejudice fairly attributable to the challenged
35 process" (internal quotation marks omitted)). As the BIA
36 determined, Kuzmenko had not shown prejudice resulting from
37 the absence of his witness's testimony because his claim was
38 denied for failure to establish a nexus to a protected
1
The BIA's alternative finding--that Kuzmenko's
social group lacks sufficient particularity--does not
militate against remand, because "[t]he ‘social distinction'
and ‘particularity' requirements . . . overlap because the
overall definition [of a particular social group] is applied
in the fact-specific context of an applicant's claim for
relief." See Matter of M-E-V-G-, 26 I. & N. Dec. at 241.
3
1 ground--not because of a failure to establish his
2 cooperation with the FBI. Indeed, the IJ credited the
3 witness's affidavit and found that it was entitled to a fair
4 amount of weight. Kuzmenko now argues that live testimony
5 would have been more persuasive, but he fails to identify
6 any facts that his witness's live testimony would have
7 established that were absent from the affidavit.
8 Importantly, it was Kuzmenko who elected to proceed without
9 live testimony and declined a suggestion by the IJ to seek
10 an additional continuance in order to secure his witness.
11 Therefore, the BIA did not err in finding that Kuzmenko
12 failed to demonstrate that he was prejudiced by DHS's
13 alleged misconduct. See Garcia-Villeda, 531 F.3d at 149.
14
15 Lastly, we are unable consider Kuzmenko's ineffective
16 assistance of counsel claims in the first instance because
17 he has not complied with the Lozada requirements. See
18 Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A. 1988); see
19 also Zheng v. U.S. Dep't of Justice, 409 F.3d 43, 46 (2d
20 Cir. 2005) (requiring substantial compliance with Lozada to
21 preserve an ineffective assistance of counsel claim).
22
23 For the foregoing reasons, the petition for review is
24 GRANTED in part and DENIED in part. As we have completed
25 our review, any stay of removal that the Court previously
26 granted in this petition is VACATED, and any pending motion
27 for a stay of removal in this petition is DISMISSED as moot.
28 Any pending request for oral argument in this petition is
29 DENIED in accordance with Federal Rule of Appellate
30 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
31
32 FOR THE COURT:
33 CATHERINE O’HAGAN WOLFE, CLERK
34
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4