Shamshualeev v. Gonzales, (2nd Cir. 2007)

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06-4658-ag

Shamshualeev v. Gonzales

BIA

Rocco, IJ

A 97 302 794

A 97 302 796

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

R U L I N G S BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS FILED

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A t a stated term of the United States Court of Appeals

f o r the Second Circuit, held at the Daniel Patrick Moynihan

U n i t e d States Courthouse, 500 Pearl Street, in the City of

N e w York, on the 3rd day of July, two thousand seven.

PRESENT:

H O N . RALPH K. WINTER,

H O N . CHESTER J. STRAUB,

H O N . RICHARD C. WESLEY,

C i r c u i t Judges.

D A U R E N SHAMSHUALEEV, OLGA OLEGOVNA

KALKIS,

Petitioners,

v. 06-4658-ag

NAC

A L B E R T O GONZALES,

Respondent.

F O R PETITIONERS: D a u r e n Shamshualeev, Olga Kalkis,

p r o se, Key West, Florida.

F O R RESPONDENT: P e t e r D. Keisler, Assistant Attorney G e n e r a l , Civil Division; Michelle G o r d e n Latour, Assistant Director; B r e n d a n P. Hogan, Attorney, Office o f Immigration Litigation, W a s h i n g t o n , D.C.

U P O N DUE CONSIDERATION of this petition for review of a B o a r d of Immigration Appeals ("BIA") decision, it is hereby O R D E R E D , ADJUDGED, AND DECREED that the petition for review i s GRANTED, the decision of the BIA is VACATED, and the case R E M A N D E D for further proceedings consistent with this decision.

P e t i t i o n e r Dauren Shamshualeev, a citizen of Russia of K a z a k h nationality and Asian race, and petitioner Olga O l e g o v n a Kalkis, a native and citizen of Russia, seek review o f a September 11, 2006 order of the BIA affirming the March 1 6 , 2005 decision of Immigration Judge ("IJ") Michaelangelo R o c c o denying their application for asylum, withholding of r e m o v a l , and relief under the Convention Against Torture ("CAT"). In re Dauren Shamshualeev, Olga Olegovna Kalkis, N o s . A 97 302 794, A 97 302 796 (B.I.A. Sept. 11, 2006), a f f ' g Nos. A 97 302 794, A 97 302 796 (Immig. Ct. Buffalo, M a r . 16, 2005). We assume the parties' familiarity with the u n d e r l y i n g facts and procedural history in this case.

W h e n the BIA summarily affirms the decision of the IJ w i t h o u t issuing an opinion, see 8 C.F.R. § 1003.1(e)(4), t h i s Court reviews the IJ's decision as the final agency determination. See, e.g., Twum v. INS, 411 F.3d 54, 58 (2d C i r . 2005). This Court reviews the agency's factual f i n d i n g s under the substantial evidence standard, treating t h e m as "conclusive unless any reasonable adjudicator would b e compelled to conclude to the contrary." 8U.S.C. § 1 2 5 2 ( b ) ( 4 ) ( B ) ; see, e.g., Zhou Yun Zhang v. INS, 386 F.3d 6 6 , 73 & n.7 (2d Cir. 2004). A determination "based on f l a w e d reasoning . . . will not satisfy the substantial e v i d e n c e standard," and the agency's use of "an i n a p p r o p r i a t e l y stringent standard when evaluating an a p p l i c a n t ' s testimony constitutes legal, not factual error." S e c a i d a - R o s a l e s v. INS, 331 F.3d 297, 307 (2d Cir. 2003); C a o He Lin v. U.S. Dep't of Justice, 428 F.3d 391, 400 (2d C i r . 2005); see also Xiao Ji Chen v. U.S. Dep't of Justice, 4 7 1 F.3d 315, 339-40 (2d Cir. 2006) (agreeing with this p r i n c i p l e , but avoiding remand, in spite of deficiencies in a n adverse credibility determination, because it could be c o n f i d e n t l y predicted that the IJ would adhere to the d e c i s i o n were the case remanded).

H e r e , the IJ's determination that Shamshualeev failed t o establish past persecution was flawed because the record d o e s not support the IJ's finding that Shamshualeev failed t o show that he was singled out and targeted for persecution. To the contrary, Shamshualeev testified that h e was physically assaulted on four separate occasions ­ a p p r o x i m a t e l y every other year from the late 1990s to 2003 ­ b y groups of either classmates or skinheads who told him to " g e t out" of "their" country and return to Kazakhstan. He r e c e i v e d medical treatment on three of those occasions, and s u s t a i n e d injuries to his head, right kidney, and ribs d u r i n g the last attack. Additionally, upon reporting these i n c i d e n t s to the principals of his schools and to the p o l i c e , he testified that the principals alternately told h i m to change schools and that there was nothing that could b e done about the way he was treated because he was " d i f f e r e n t from everybody else," and that the police "did n o t h i n g " when he was beaten in his apartment building.

T h e incidents described by Shamshualeev were d i s t i n g u i s h a b l e from those events that this Court has found t o be "isolated" and "random," in that he alleged c i r c u m s t a n c e s indicating that the persecutors were motivated b y his race or nationality as a Kazakh, and he recounted s e v e r a l incidents that occurred over a shorter time period.

S e e Joaquin-Porras v. Gonzales, 435 F.3d 172, 181 (2d Cir. 2 0 0 6 ) ; Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999). Further, although the police questioned people r e g a r d i n g the incident in which he was beaten by skinheads w h i l e walking in a park with his Russian girlfriend, the IJ f a i l e d to sufficiently analyze whether the authorities were u n a b l e or unwilling to protect him, in light of the country c o n d i t i o n s described in the 2003 State Department Country R e p o r t on Human Rights Practices for China. 1 M o r e o v e r , because the IJ found the later two physical a t t a c k s described by Shamshualeev to be "random acts" by " t h u g s , " he failed to evaluate the cumulative effect of all o f the physical assaults alleged by Shamshualeev. See P o r a d i s o v a v. Gonzales, 420 F.3d 70, 79-80 (2d Cir. 2005).

T h e IJ similarly failed to address the repeated recurrence o f swastikas or other anti-ethnic graffiti on Shamshualeev's 1 This report states that "members of ethnic or racial minorities were the victims of beatings, extortion, and harassment by skinheads and members of other racist and extremist groups"; police "made few arrests, although many such cases were reported by human rights organizations"; skinhead groups "numbered 50,000 in over 50 organizations at year's end," and "[n]ot all of the authorities appeared willing to acknowledge the racial motivation behind anti-social brutality." Country Reports on Human Rights Practices-2003, Russia, U.S. Department of State, Bureau of Democracy, Human Rights, and Labor, at 36 (Feb. 2004). The State Department also notes that new federal and local measures to combat crime "continued to be applied disproportionately to persons appearing to be from the Caucasus and Central Asia," and that the police reportedly "beat, harassed, and demanded bribes from persons with dark skin, or who appeared to be from the Caucasus, Central Asia, or Africa." Id. h o m e , despite his family's transfer to a new residence.

W h i l e the perpetrators of the various offenses against S h a m s h u a l e e v and his family members were not identified, we h a v e never imposed a requirement that a victim conclusively i d e n t i f y his persecutors. Such a requirement would be c o n t r a r y to the holding in In re S-P-, 21 I. & N. Dec. 486, 4 9 4 (BIA 1996), that circumstantial evidence of nexus may be sufficient. See Osorio v. INS, 18 F.3d 1017, 1023-25, 1031 ( 2 d Cir. 1994) (finding persecution on account of political o p i n i o n where petitioner received two anonymous death t h r e a t s and several of his fellow union workers were a t t a c k e d or killed by unidentified armed men).

T h e IJ's finding that Shamshualeev failed to d e m o n s t r a t e a well-founded fear of persecution is also flawed. First, because the IJ's past persecution analysis w a s flawed, the question of whether Shamshualeev is entitled t o a rebuttable presumption of a well-founded fear remains unanswered. See 8 C.F.R. § 208.13(b)(1). Further, in r e j e c t i n g Shamshualeev's mother's letter recounting the b u r n i n g of the family car by skinheads after his departure t o the United States, the IJ was obliged to point to the r e l e v a n t documentation that he would have required to s u p p o r t this aspect of his claim, and show that it was r e a s o n a b l y available, when Shamshualeev was otherwise credible. See Jin Shui Qiu v. Ashcroft, 329 F.3d 140, 153 ( 2 d Cir. 2003).

T h e above deficiencies in the IJ's decision require r e m a n d of Shamshualeev's and his wife's claims for asylum, w i t h h o l d i n g of removal and CAT relief, all of which share t h e same factual predicate, because we cannot state with c o n f i d e n c e that the IJ would find them ineligible for r e l i e f , absent the errors. See Xiao Ji Chen, 471 F.3d at 339-40.

F o r the foregoing reasons, the petition for review is G R A N T E D , the decision of the BIA is VACATED, and the case R E M A N D E D for further proceedings consistent with this decision. Having completed our review, petitioner's pending m o t i o n for a stay of removal in this petition is DENIED as moot.

F O R THE COURT: C a t h e r i n e O'Hagan Wolfe, Clerk B y :

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