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,

(2d Cir. 2005). The

applicable standards of review are well established. See

(b)(4)(B); Yanqin Weng v. Holder,

(2d Cir. 2009); Li Yong Cao v. U.S. Dep’t of Justice,

(2d Cir. 2005). 2 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,

, 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.”

(b)(1)(B)(i); see

(b)(3)(A); Matter of C-T-L-,

(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,

(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

3 v. Gonzales,

(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,

(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

4 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

5 imputed protected ground.” Aliyev v. Mukasey,

(2d Cir. 2008) (internal quotation marks omitted).

Furthermore, rather than consider all of these incidents

cumulatively as required, see Poradisova,

,

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,

(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,

.

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

(d)(3)(iv) (“A party

6 asserting that the Board cannot properly resolve an appeal

without further factfinding must file a motion for remand.”);

see also Matter of Fedorenko,

(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

(c)(1), (4); Li Yong Cao,

(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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