08-6102-ag
Konayev v. Holder
BIA
A095 841 385
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 13 th day of April, two thousand ten.
PRESENT:
JOSEPH M. McLAUGHLIN,
ROBERT A. KATZMANN,
RICHARD C. WESLEY,
Circuit Judges.
_________________________________________
IGOR VASILIEVICH KONAYEV,
Petitioner,
v. 08-6102-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL, *
Respondent.
_________________________________________
FOR PETITIONER: Jonathan R. Nelson, New York, N.Y.
FOR RESPONDENT: Tony West, Assistant Attorney
*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr. is
automatically substituted for former Attorney General
Michael B. Mukasey as respondent in this case.
General, Civil Division; David V.
Bernal, Assistant Director, Office of
Immigration Litigation; Margaret
Kuehne Taylor, Attorney, Office of
Immigration Litigation, United States
Department of Justice, Washington, DC
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED, that the petition for review
is GRANTED.
Petitioner Igor Vasilievich Konayev, a native and
citizen of Kazakhstan, seeks review of a November 17, 2008,
order of the BIA denying his motion to reopen. In re Igor
Vasilievich Konayev, No. A095 841 385 (B.I.A. Nov. 17,
2008). We assume the parties’ familiarity with the
underlying facts and procedural history in this case. This
Court reviews the BIA’s denial of a motion to reopen for
abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d
Cir. 2005) (per curiam).
There is no dispute that Konayev’s June 2008 motion to
reopen was untimely because the agency issued a final order
of removal in August 2004. See 8 C.F.R. § 1003.2(c)(2).
However, there is no time or numerical limitation for filing
a motion to reopen if it is “based on changed circumstances
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arising in the country of nationality or in the country to
which deportation has been ordered, if such evidence is
material and was not available and could not have been
discovered or presented at the previous hearing.” 8 C.F.R.
§ 1003.2(c)(3)(ii).
Here, the BIA abused its discretion by failing to
consider material evidence submitted by Konayev in support
of his motion to reopen. Shou Yung Guo v. Gonzales, 463
F.3d 109, 115 (2d Cir. 2006). “Despite our generally
deferential review of IJ and BIA opinions, we require . . .
some indication that the [BIA] considered material evidence
supporting a petitioner's claim.” Poradisova v. Gonzales,
420 F.3d 70, 77 (2d Cir. 2005).
Much of the over 700 pages of evidence submitted with
Konayev’s motion was arguably material to changed country
conditions in Kazakhstan and his claim that he has a well-
founded fear of persecution based on his religion. Yet, the
BIA failed to indicate in its decision that it considered
substantial pieces of evidence bearing materially on
Konayev’s claim. Rather, it improperly placed “excessive
reliance” on published reports of the Department of State
and quoted selected passages from an expert affidavit to
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conclude that “the evidence submitted with the respondent’s
motion does not demonstrate that he will face persecution by
the government, nor does it demonstrate that the government
would be unwilling or unable to protect the respondent from
harm.” S.P.A.3. See Tian-Yong Chen v. I.N.S., 359 F.3d 121,
130 (2d Cir. 2004). Because Konayev submitted evidence
material to his claim that country conditions in Kazakhstan
have changed with regard to the treatment of non-traditional
evangelical registered Baptist church members such as
himself, the BIA’s failure to consider the evidence was an
abuse of discretion. Thus, remand is warranted in order to
allow the BIA to consider Konayev’s evidence of changed
country conditions and whether he can establish a well-
founded fear of persecution. See Cao He Lin v. U.S. Dep’t
of Justice, 428 F.3d 391, 406 (2d Cir. 2005).
For the foregoing reasons, the petition for review is
GRANTED and the case is REMANDED for further proceedings
consistent with this decision. As we have completed our
review, the pending motion for a stay of removal in this
petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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