16-4146
Konoplyankin v. Barr
BIA
Reid, IJ
A206 471 637
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 TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall
United States Courthouse, 40 Foley Square, in the City of
New York, on the 18th day of September, two thousand
nineteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
RICHARD C. WESLEY,
DEBRA ANN LIVINGSTON,
Circuit Judges.
_____________________________________
KIRILL NIKOLAYEVICH KONOPLYANKIN,
Petitioner,
v. 16-4146
NAC
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Alexander Almonte, Almonte Law
Firm, P.C., Brooklyn, NY.
FOR RESPONDENT: Joseph H. Hunt, Assistant
Attorney General; Stephen J.
Flynn, Assistant Director; James
A. Hurley, Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Civil Division, 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 in part and DENIED in part.
Petitioner Kirill Nikolayevich Konoplyankin, a native of
the former Union of Soviet Socialist Republics and a citizen
of Kazakhstan, seeks review of a November 16, 2016, decision
of the BIA that affirmed a November 23, 2015, decision of an
Immigration Judge (“IJ”) denying asylum, withholding of
removal, and relief under the Convention Against Torture
(“CAT”), and denied his motion to remand. In re Kirill
Nikolayevich Konoplyankin, No. A206 471 637 (B.I.A. Nov. 16,
2016), aff’g No. A206 471 637 (Immig. Ct. Batavia Nov. 23,
2015). We assume the parties’ familiarity with the
underlying facts and procedural history in this case.
Under the circumstances of this case, we have reviewed
the decision of the IJ as supplemented by the BIA. See Yan
Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
applicable standards of review are well established. See
8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d
510, 513 (2d Cir. 2009); Li Yong Cao v. U.S. Dep’t of Justice,
421 F.3d 149, 156 (2d Cir. 2005).
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As an initial matter, Konoplyankin does not challenge
the agency’s pretermission of his asylum application as
untimely or the denial of CAT relief on the merits and thus
we do not consider those claims. See Yueqing Zhang v.
Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005)
(noting that petitioner abandons issues not raised in his
briefs). However, as discussed below, we grant the petition
and remand because the agency erred in its analysis of
withholding of removal.
To establish eligibility for withholding of removal, “the
applicant must establish that race, religion, nationality,
membership in a particular social group, or political opinion
was or will be at least one central reason for persecuting
the applicant.” 8 U.S.C. § 1158(b)(1)(B)(i); see 8 U.S.C.
§ 1231(b)(3)(A); Matter of C-T-L-, 25 I. & N. Dec. 341, 348
(B.I.A. 2010). Withholding of removal “may be granted where
there is more than one motive for mistreatment, as long as at
least one central reason for the mistreatment is on account
of a protected ground.” Acharya v. Holder, 761 F.3d 289, 297
(2d Cir. 2014) (internal quotation marks and citations
omitted). In evaluating a past persecution claim, the agency
must consider the harm suffered in the aggregate. Poradisova
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v. Gonzales, 420 F.3d 70, 79-80 (2d Cir. 2005). “[P]rivate
acts may be persecution if the government has proved unwilling
to control such actions.” Ivanishvili v. U.S. Dep’t of
Justice, 433 F.3d 332, 342 (2d Cir. 2006).
Konoplyankin testified to past persecution and a fear of
future persecution in Kazakhstan on account of his Russian
ethnicity based on the following incidents. In school
Konoplyankin grew up being bullied because he only spoke
Russian and not Kazakh. In 2007, after Konoplyankin pushed
one of his sister’s schoolmates who had just pushed and hurt
his sister, four of her schoolmates beat and kicked him,
called him a “Russian dog,” and told him to leave Kazakhstan.
Konoplyankin suffered a concussion, but when he reported the
incident to police, they threatened him with jail if he did
not withdraw his complaint. The following year, three people
attacked him and stole his backpack, but a policeman stopped
him from chasing his attackers, put his arm behind his back
dislocating his shoulder, pushed him into the police car, and
held him in jail for two days. In 2010, two policemen stopped
Konoplyankin and a friend, put their arms behind their backs,
searched them for contraband, told his friend to shut up, and
called his friend a “Russian bitch,” before taking them to a
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police station where they were handcuffed in a room for two
hours and then questioned by someone Konoplyankin believed
was probably a supervisor who commented on the fact that they
did not speak Kazakh, referred to them as parasites, and said
they were the main problem in society. The police detained
them overnight before letting them go for lack of evidence of
the robbery they claimed to have suspected them of committing.
Later that same year, two men beat Konoplyankin outside a
nightclub because he did not speak Kazakh.
The IJ acknowledged that the country reports show “a
great number of conflicts and hostilities between the Russian
speakers and the Kazakh speakers in Kazakhstan,” but found
that Konoplyankin’s “incidents . . . to a large degree seem
to relate to criminal offenses and the police response to
criminal offenses where they were looking to find the
perpetrators.” The IJ thus concluded that Konoplyankin
failed to demonstrate that the incidents he suffered were
“more likely than not based upon his Russian ethnicity.” The
IJ applied an incorrect standard by requiring Konoplyankin to
show that the harm he suffered was “more likely than not” on
account of a protected ground when he was required to show
“only that the harm was motivated, in part, by an actual or
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imputed protected ground.” Aliyev v. Mukasey, 549 F.3d 111,
116 (2d Cir. 2008) (internal quotation marks omitted).
Furthermore, rather than consider all of these incidents
cumulatively as required, see Poradisova, 420 F.3d at 79-80,
the IJ declined to address incidents that were “normal, or at
least threats or discrimination.” The IJ also erroneously
speculated that police were involved in legitimate law
enforcement efforts when they attacked and detained
Konoplyankin even though Konoplyankin’s testimony suggests
that police claimed to investigate a robbery as a pretext for
targeting him. Cf. Jin Jin Long v. Holder, 620 F.3d 162, 166
(2d Cir. 2010) (“[P]rosecution that is pretext for political
persecution is not on account of law enforcement.”). And the
IJ failed to address whether police had a mixed motive in
targeting Konoplyankin. See Acharya, 761 F.3d at 296-97.
The BIA did not correct the IJ’s errors.
Accordingly, we find that the agency erred in its denial
of withholding of removal, and grant Konoplyankin’s petition
for review to this extent.
We find no error in the BIA’s decision declining to
remand. Konoplyankin did not move to remand as required by
regulation. See 8 C.F.R. § 1003.1(d)(3)(iv) (“A party
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asserting that the Board cannot properly resolve an appeal
without further factfinding must file a motion for remand.”);
see also Matter of Fedorenko, 19 I. & N. Dec. 57, 74 (B.I.A.
1984) (recognizing that, as an appellate body, the BIA may
decline to review evidence proffered for the first time on
appeal). Nor did the BIA abuse its discretion in declining
to remand because most of the evidence had either been
submitted to the IJ or was previously available at that time
and thus did not satisfy the requirement that the movant
submit evidence that was not available at the time of his
hearing. See 8 C.F.R. § 1003.2(c)(1), (4); Li Yong Cao, 421
F.3d at 156, 158 (providing that a motion to remand “is held
to the substantive requirements of a motion to reopen” and
that a movant must “present material, previously unavailable
evidence”).
For the foregoing reasons, the petition for review is
GRANTED in part and remanded to the BIA and DENIED in part.
FOR THE COURT:
Catherine O=Hagan Wolfe
Clerk of Court
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